PREEMPTION, PATCHWORK IMMIGRATION
LAWS, AND THE POTENTIAL FOR BROWN
The raging debate about comprehensive immigration reform is ripe
ground to overhaul federal exclusivity in the immigration context and move
toward a cooperative federal and state-local model. The proliferation of
immigration-related ordinances at the state and local level reflects
“lawful” attempts to enforce immigration law to conserve limited resources
for citizens and legal residents. Although the federal immigration statutes
contemplate state and local involvement, the broad federal preemption
model used to analyze immigration laws displaces many state-local
ordinances, resulting in frustration at the inability to enforce the
community’s resolve that is manifested through violence against Latino
immigrants. Broad federal preemption analyses alter the traditional scope
of the states’ police powers, and set the stage for “brown sundown
towns”— where Latinos are not welcomed.
This Note evaluates the preemption analyses used in Lozano v. City of
Hazleton and Chicanos Por La Causa, Inc. v. Napolitano, and looks at the
aftermath effects of the decisions at the communal level. It argues that the
narrow preemption analysis in Chicanos Por La Causa strikes the correct
balance between federal and state-local interests. A narrow approach
better weighs state-local concerns and generates notoriety, which can
incentivize action at the federal level. The Note then studies three
scholarship models that balance differently the federal and state-local
relationship in the immigration context. It posits that the narrow
preemption approach can pave the way for the cooperative federalism
model, and contain a new wave of sundown towns. As narrow preemption
analysis considers state-local concerns, cooperative federalism addresses
the reality that it is states and localities, rather than the federal
government, which must incorporate immigrants into the communal fabric.
Accordingly, this Note calls attention to the relationship between
preemption analysis, practical reality at the state-local level, and how these
two factors correlate with the creation of brown sundown towns.
J.D. Candidate, 2011, Fordham University School of Law, B.A., 2004, Columbia
University. I would like to thank Professor Robin A. Lenhardt for her ideas and thoughtful
guidance. Gracias a mi mamá por su cariño, apoyo, y por siempre creer en mí. Thanks
especially to my husband for his love, constant encouragement, and faith in me throughout
the Note process. I would also like to thank my family and friends, particularly Liz for her
support and Ryan for his insightful feedback.
322 FORDHAM LAW REVIEW [Vol. 79
TABLE OF CONTENTS
INTRODUCTION .......................................................................................... 323
I. UNDERSTANDING SUNDOWN TOWNS, FEDERAL EXCLUSIVITY IN
IMMIGRATION, AND THEIR RELATIONSHIP .................................... 325
A. Sundown Towns ......................................................................... 325
B. History of Federal Exclusivity: How Did We Get Here? ......... 328
C. Dismantling Federal Exclusivity: Legislative and Judicial
History .................................................................................... 330
D. The Preemption Doctrine .......................................................... 335
1. Generally ............................................................................. 336
2. Preemption As Applied in the Immigration Context .......... 337
E. Scope of the States’ Police Powers Within the Immigration
Context .................................................................................... 338
II. DIVERGENT PREEMPTION APPROACHES IN THE IMMIGRATION
CONTEXT AND THEIR CONSEQUENCES .......................................... 340
A. Preemption as Applied by the Middle District of
Pennsylvania and the Ninth Circuit ........................................ 341
1. Lozano v. City of Hazleton .................................................. 341
2. Chicanos Por La Causa, Inc. v. Napolitano ....................... 347
B. The Ninth Circuit’s Chicanos Por La Causa Provides New
Impetus for Arizona’s Continued Involvement with
Immigration-Related Laws at the State Level ......................... 351
C. Scholarship Models to Federal Preemption in the
Immigration Context ............................................................... 354
1. Federal Exclusivity ............................................................. 354
2. State and Local Regulation of Immigration ........................ 356
3. Cooperative Federalism ...................................................... 357
III. PAVING THE WAY FOR COOPERATIVE FEDERALISM AND AVOIDING
BROWN SUNDOWN TOWNS ............................................................ 361
A. The Ninth Circuit’s Chicanos Por La Causa Decision
Illustrates the Appropriate Approach to Preemption
Analysis in the Immigration Context ....................................... 361
B. Cooperative Federalism Is the Most Effective Model for the
Federal and State-Local Relationship as Reflected in
Chicanos Por La Causa ........................................................... 364
C. Avoiding Brown Sundown Towns .............................................. 366
CONCLUSION ............................................................................................. 368
2010] BROWN SUNDOWN TOWNS? 323
“A Mass Meeting of the citizens of this place and vicinity will be held . .
. to devise some lawful means of ridding Crescent City of Chinese.”1
The idea that the federal government has plenary power over immigration
law is beginning to erode.2 Grounded on a tenuous foundation,3 federal
exclusivity over immigration should be revisited in light of increased state
and local legislation seeking to fill in gaps in the complex and vague federal
immigration policy.4 Currently, the state-local legislation affecting
immigrants reflects “lawful” attempts to enforce immigration law at the
local level as states and localities attempt to conserve limited resources for
their citizens and legal residents. Because of the broad federal preemption
models generally applied to analyze immigration laws, the legislative text
of these subnational laws seeks to mirror federal standards or evade
categorization as immigration regulations, and seeks classification as
permitted regulations within the state-local police powers—that is, the
states’ ability to regulate health, welfare, and crime.5 This technical
maneuvering approach is setting the stage for a new iteration of “sundown
towns”—brown sundown towns, where Latinos are not welcomed.
The current immigration landscape is ripe ground to reexamine federal
exclusivity and move toward a cooperative federal and state-local model.6
This new model, cooperative federalism, better addresses the reality that it
is states and localities, rather than the federal government, that must be
tasked with incorporating immigrants into the communal fabric.7 Allowing
state and local laws to determine how best to deal with immigrant influxes
may result, in the interim, in national confusion as to the correct preemption
1. JAMES W. LOEWEN, SUNDOWN TOWNS: A HIDDEN DIMENSION OF AMERICAN RACISM
310–311 (2006) (reprinting newspaper articles that document the Chinese expulsion from
2. See Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation,
106 MICH. L. REV. 567, 571–76 (2008); Juliet P. Stumpf, States of Confusion: The Rise of
State and Local Power over Immigration, 86 N.C. L. REV. 1557, 1566, 1581–83 (2008).
3. States regulated immigration until U.S. Supreme Court decisions established
congressional plenary power in the immigration context. See Stephen H. Legomsky,
Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV.
255, 255 (referring to Congress’s plenary power over immigration law as a “constitutional
oddity”); see also STEPHEN H. LEGOMSKY & CRISTINA M. RODRÍGUEZ, IMMIGRATION AND
REFUGEE LAW AND POLICY 115–23 (5th ed. 2009) (suggesting that federal exclusivity in
immigration policy is not explicitly grounded in the Constitution’s text).
4. See Pratheepan Gulasekaram, Sub-national Immigration Regulation and the Pursuit
of Cultural Cohesion, 77 U. CIN. L. REV. 1441, 1443–46 & nn.8–9 (2009); Peter Baker,
Obama Exhorts Congress To Back Immigration Overhaul, N.Y. TIMES, July 2, 2010, at A12;
see also 8 U.S.C. § 1324a (2006) (employment); id. § 1324 (harboring). However, neither
statutory provision is specific or clear enough for uniform judicial agreement regarding
congressional intent whether to partially or entirely preempt state and local legislation in
5. See Stumpf, supra note 2, at 1566–67.
6. Rodríguez, supra note 2, at 570–73, 641.
7. Id. It is important to make the reality on the ground reflect the law on the books. Id.
324 FORDHAM LAW REVIEW [Vol. 79
approach.8 This effect likely will be short lived.9 The diversity of
approaches will incentivize the federal government to set clearer standards
or take a stance in the current debate,10 which will foster federal-state
cooperation and increase control and enforcement of immigration law.11
Piecemeal state-local attempts within the current immigration framework
only redirect immigrant flows elsewhere without finding practical solutions
on how to integrate, manage, and stabilize immigrant influxes. The
cooperative federalism model will result in a greater degree of collaboration
between the federal and state-local governments. Combined with a narrow
preemption analysis, this model will tackle the immigration problem head
on and prevent the proliferation of brown sundown towns.12
This Note evaluates the broad and narrow preemption analyses used in
Lozano v. City of Hazleton13 and Chicanos Por La Causa, Inc. v.
Napolitano.14 It looks at the aftermath of the decisions at the communal
level and posits that Chicanos Por La Causa strikes the correct balance
between federal and state-local interests. A narrow approach better weighs
state-local concerns and generates notoriety, which can incentivize action at
the federal level. The Note also studies three scholarship models that
balance differently the federal and state-local relationship in the
immigration context and proposes that the narrow preemption approach can
pave the way for the cooperative federalism model. By better addressing
the reality that states and localities—rather than the federal government—
must incorporate immigrants into the communal fabric, cooperative
federalism can contain a new wave of sundown towns. Accordingly, this
Note calls attention to the relationship between preemption analysis,
8. Id. at 616–36; see also Gulasekaram, supra note 4, at 1496 (“Currently, the federal
polity and several states and localities are construction zones.”).
9. Rodríguez, supra note 2, at 616–36. This approach will lead to some initial
discrimination, but in the long run, competition at the subnational level is healthy in
developing a coherent immigration approach. Id.
10. See id.; Randal C. Archibold, Arizona Law Is the Focus of a Debate in U.S. Court,
N.Y. TIMES, July 16, 2010, at A18; Julia Preston, Justice Dept. Sues Arizona Over Its
Immigration Law, N.Y. TIMES, July 7, 2010, at A3.
11. Rodríguez, supra note 2, at 616–36.
12. See generally Tom I. Romero, II, No Brown Towns: Anti–Immigrant Ordinances
and Equality of Educational Opportunity for Latina/os, 12 J. GENDER RACE & JUST. 13
(2008). This article explores the impact of anti-immigration ordinances in the educational
context, but it contains statistics on how the measures have affected the movement of
Latinos. Id. at 15–16 (discussing how about “25,000 Latinos left northeastern Oklahoma
alone in response to the Oklahoma Taxpayer and Citizen Protection Act of 2007, ‘billed by
its backers as the toughest U.S. legislation against illegal immigration’” (quoting Oklahoma
Law Blamed For Hispanic Exodus, MSNBC (Jan. 25, 2008),
http://www.msnbc.msn.com/id/22845808/from/ET/)). Professor Tom I. Romero argues that
the state-local educational measures are about race—“about who is and who is not part of the
community”—and not about the need for immigration control at the state-local level. Id. at
13. 496 F. Supp. 2d 477 (M.D. Pa. 2007), aff’d in part, rev’d in part, No. 07-3531, slip
op. at 146 (3d Cir. Sept. 9, 2010).
14. 544 F.3d 976 (9th Cir. 2008), amended by 558 F.3d 856 (9th Cir. 2009), cert.
granted sub nom. Chamber of Commerce v. Candelaria, ___ S. Ct. ___, 78 U.S.L.W. 3762
(U.S. June 28, 2010) (No. 09-115).
2010] BROWN SUNDOWN TOWNS? 325
practical reality at the state-local level, and how these two factors can
combine to develop brown sundown towns.
In Part I, this Note explores the case law, constitutional, statutory, and
social foundations underlying the current immigration regulatory
framework. Part II of this Note lays out the two types of federal preemption
analyses used to examine state-local laws of which immigrants are the
subjects. It then addresses three scholarship models proposing different
balances to the federal and state-local relationship in the realm of
immigration law. In Part III, this Note argues that the narrow preemption
analysis in Chicanos Por La Causa strikes the correct balance between
federal and state-local interests. It proposes that the narrow preemption
approach will pave the way for the cooperative federalism model, and
prevent a new wave of sundown towns.
I. UNDERSTANDING SUNDOWN TOWNS, FEDERAL EXCLUSIVITY IN
IMMIGRATION, AND THEIR RELATIONSHIP
This part explains the legal history that shaped the current federal
immigration regulatory scheme. Part I.A defines “sundown towns” and
describes why the concept is relevant to the current national debate over
immigration regulation. Then, Part I.B. traces the constitutional and case
history that established federal exclusivity over immigration laws. Part I.C
concentrates on how the constitutional and case-law developments resulted
in vast federal statutes governing immigration. It then explains how
subsequent statutes and case law have eroded the doctrine of federal
exclusivity in the immigration context.
A. Sundown Towns
Sundown towns are an obscure part of American history.15 A sundown
town refers to a jurisdiction that excluded minority groups from living
there—it was “all-white” on purpose.16 Because such a classification was
inappropriate for U.S. Census purposes,17 the towns usually allowed one
black family or other racial minorities to reside within the jurisdictional
Sundown towns emerged during the 1800s and reflected the growing
anti-Chinese sentiment in response to increased immigration from China to
the United States.19 Capitalists encouraged Chinese immigration as a cheap
15. LOEWEN, supra note 1, at 5.
16. Id. at 4.
17. Race has been asked about in the Census since 1790. Race: Why Ask About It?,
U.S. Census Bureau Question & Answer Center, https://ask.census.gov/ (last visited Sept.
23, 2010) (insert “Race: Why Ask About It?” into “Search by Keyword” and select first
result). The government uses the data to assess disparities in health, access to social
services, and education, among other government benefits. Id. The information also is
important to determine funding for federal programs. Id.
18. LOEWEN, supra note 1, at 4.
19. Id. at 12, 31, 47.
326 FORDHAM LAW REVIEW [Vol. 79
source of farm, domestic, and industrial labor.20 Although Chinese
immigrants were a vital part of building the American West,21 white
workers suffered due to increased competition with the Chinese for the
same sources of employment.22 As a result, state and local government
efforts forced Chinese immigrants to migrate to large metropolitan cities,
away from small towns and suburbs, thereby creating sundown towns.23
Accordingly, many towns and counties in the West drove out their
Chinese populations through a combination of legal and extra-legal
methods usually characterized by violence.24 For example, armed white
miners in Wyoming gave Chinese workers one hour to evacuate the town,
after which they opened fire.25 Because some Chinese hid in their homes,
the rioters set fire to their houses, killing those remaining inside.26 Those
who escaped were not spared; without shelter, many died from exposure to
low temperatures, leading to the expression “He doesn’t have a Chinaman’s
chance.”27 This series of events was repeated throughout Western towns.28
The sundown town concept grew to characterize not only the exclusion
of the Chinese, but also African Americans and Mexicans.29 “In town after
town in the United States, especially between 1890 and the 1930s, whites
forced out their African American neighbors violently, as they had the
Chinese in the West.”30 After African Americans gained their freedom,
many American cities with black populations devised ways to exclude the
new citizens.31 Through ordinances or other governmental action,32
buyout,33 freeze-out,34 or violence,35 many cities became places where
blacks and other ethnic minorities were not welcome.36 By the early 1900s,
these towns explicitly forbade blacks and other ethnic minorities from
20. See id. at 50.
22. See id.
23. Id. at 18, 47, 50–54.
24. Id. at 50–53.
25. Id. at 50.
27. Id. at 51.
28. Id. at 50–53.
29. Id. at 4.
30. Id. at 92.
31. See id. at 90–114.
32. See id. at 99–105. An ordinance is an authoritative law, decree, or regulation.
BLACK’S LAW DICTIONARY 1132 (8th ed. 2004). “Municipal governments can pass
ordinances on matters that the state government allows to be regulated at the local level.” Id.
Although the ordinances were eventually found to be illegal, their enforcement continued
through the formal policy or unwritten laws of police departments. LOEWEN, supra note 1, at
33. LOEWEN, supra note 1, at 108–09. Buyout refers to communal efforts in which
towns bought out the homes of African Americans or prevented African Americans from
completing purchases. Id. at 108.
34. Id. at 105–07. Freeze-out refers to the practice employed by some towns in which
white residents made African Americans feel unwelcome and barred African Americans
from activities in which they had previously participated. Id. at 105–06. This was achieved
through collective but private discrimination. Id. at 107.
35. Id. at 92–99. “Sometimes just the threat of violence sufficed . . . .” Id. at 96.
36. Id. at 90–114.
2010] BROWN SUNDOWN TOWNS? 327
residing within their limits.37 If allowed at all, blacks and minorities had to
leave town before sundown, and signs reading “Nigger, Don’t Let the Sun
Go Down on You in _____[town name]” proliferated.38
Cultural fears and violence played a powerful role in the creation of
sundown towns.39 For example, Vienna, Illinois, became a sundown town
in the 1950s after racial tensions erupted when two black men assaulted two
white women.40 The entire black community became a proxy for the
town’s outrage and many African Americans’ houses were set on fire.41
Vienna’s black inhabitants ran for their lives, and as of the 2000 Census,
there is only one African American resident.42 Similarly, when a black
family tried to move into Cicero, Illinois, the police forcefully stopped
them.43 The National Association for the Advancement of Colored People
(NAACP) obtained an injunction to bar police interference, but this action
resulted in communal anger directed at the black family, who decided not to
move to the town.44 Whatever the method used, cities that resolved to
exclude racial and ethnic minorities used the tools at their disposal—that is,
their police powers to regulate property, zoning, and land use.45 Instances
of violence reflected the communities’ frustration at being unable to
determine which people became a part of the community and how they
were integrated.46 The violence was a manifestation of extra-legal means to
enforce the community’s resolve.47
The state and local legislation that resulted in sundown towns was
grounded on the states’ and localities’ police powers, and a tradition of
uneven enforcement and intimidation schemes.48 The sundown town
phenomenon spread due to the federal government’s protracted inability to
produce a national housing law to curtail the existence and tolerance of
sundown towns.49 It was not until the federal Fair Housing Act of 1968
(FHA) that states and localities were forced to rein in the use of their police
powers to keep out or drive out ethnic minorities.50 The FHA prohibits
37. See id. at 3.
39. See id. at 10–12.
40. Id. at 10.
43. Id. at 10–11.
44. Id. at 11.
45. See id. at 106–07. This Note does not espouse the methods adopted by sundown
towns or those being implemented by state and local governments in the current immigration
debate. It only emphasizes that the methods likely fall within the state and local
governments’ police powers or, at the very least, illustrate the exploration of non-violent
methods to implement the community’s legislative priorities.
46. See id.; Romero, supra note 12, at 15, 29–30.
47. See LOEWEN, supra note 1, at 107; cf. Romero, supra note 12, at 33.
48. See Romero, supra note 12, at 30–32 (discussing how anti-immigration legislation
stems from factors that parallel the proliferation of sundown towns in the early 1900s).
49. Cf. LOEWEN, supra note 1, at 14–15.
50. See id. at 130–32, 395–96 (detailing the federal government's and other
governmental bodies' actions—or inaction—which contributed to the sundown town
328 FORDHAM LAW REVIEW [Vol. 79
public and private discrimination in the housing market on the basis of race,
color, national origin, sex, religion, disability, and familial status.51
However, despite the breadth of the federal intervention, the damage to
race relations had been done. States and localities searched for alternative
ways to continue to exclude ethnic and racial minorities.52 Federal inaction
resulted in the severe segregation of many American towns, a persisting
The federal government's current inaction and its inability to effectively
control immigration are increasing the possibility that the sundown town
concept may soon expand to include all Latino immigrants.54 Therefore, it
is important to understand the history of federal activity and its correlation
to the sundown town phenomenon.
B. History of Federal Exclusivity: How Did We Get Here?
Until the mid-nineteenth century there was virtually no immigration law
in the United States.55 The movement of people across borders was
perceived to fall within each state’s police powers,56 which refer to a state’s
ability to legislate on health, welfare, and crime.57 During this still nascent
stage in the country’s history, states were primarily concerned with
excluding criminals and other “undesirables.”58
In 1875, the U.S. Supreme Court began to curb the era of state control of
immigration to address more effectively the large immigrant influx59 and
the disparate state laws regulating immigrants.60 The Court’s decision in
51. 42 U.S.C. § 3604 (2006).
52. See Romero, supra note 12, at 32 (describing systematic enforcement of local land
use laws to harass, discriminate against, and keep out racial minorities, while avoiding
constitutional or FHA violations).
53. See LOEWEN, supra note 1, at 16.
54. See Romero, supra note 12, at 33 (“[A]nti-immigration ordinances and other
similarly toned anti-immigrant legislation in many ways are the latest manifestation of the
Sundown Town phenomenon. Many of the catalysts driving anti-immigration hysteria are
little different from those factors contributing to Sundown Town sentiment in the early
twentieth century . . . .”).
55. LEGOMSKY & RODRÍGUEZ, supra note 3, at 115–20. Except for the Alien and
Sedition Act of 1798, Congress had not regulated immigration before 1875. Id. at 117 n.3.;
Stumpf, supra note 2, at 1566–67.
56. Stumpf, supra note 2, at 1566–67.
58. Id. at 1567–69. Due to a variety of “pull factors” in the United States, such as the
need for labor to build railroads, and “push factors” in China, such as war and political
turmoil, there was a large influx of Chinese immigrants into the United States during the
1850s. See id.; see also Gerald L. Neuman, The Lost Century of American Immigration Law
(1776–1875), 93 COLUM. L. REV. 1833 (1993) (discussing the one hundred years of state
forays into immigration regulation); cf. 1 CHARLES GORDON ET AL., IMMIGRATION LAW AND
PROCEDURE § 2.02 (rev. ed. 1966); LEGOMSKY & RODRÍGUEZ, supra note 3, at 14–15.
Accordingly, many of the early state forays into immigration regulation were racist in nature,
directed at the large Asian immigrant influx. See Stumpf, supra note 2, at 1569–73.
59. See 1 GORDON ET AL., supra note 58, § 2.02; LEGOMSKY & RODRÍGUEZ, supra note 3,
at 14–15. Even so, the immigration rate remained high and from 1901 to 1910, more than
8.5 million people came to the United States. LEGOMSKY & RODRÍGUEZ, supra note 3, at 23.
60. Stumpf, supra note 2, at 1571.
2010] BROWN SUNDOWN TOWNS? 329
Chy Lung v. Freeman61 started to establish federal plenary power in
immigration law.62 Soon thereafter, in a string of cases dealing with
congressional statutes regulating Chinese immigration to the United States,
the Court developed and declared federal plenary power in the immigration
context, and attempted to ground it in the constitutional text.63 The Court
used various constitutional clauses to expand the federal government’s
power over immigration.64
Based on enumerated powers, the Court cited the Commerce Clause,
which allows Congress to “regulate Commerce with foreign Nations.”65 It
also tried to ground plenary power over immigration in the Migration or
Importation Clause, which authorized Congress to prohibit migration and
importation after 1808.66 The Naturalization Clause also was explored
because it authorizes Congress to create “an uniform Rule of
Naturalization” and thus implied that admission of noncitizens could be
enveloped under the clause.67 The War Clause was considered as well,
since it allowed Congress to regulate “alien enemies” and perhaps extended
to regulation of noncitizens already in the country.68
Ultimately, the Court relied on implied constitutional powers to shape the
federal exclusivity doctrine in the immigration field.69 In Chae Chan Ping
v. United States (The Chinese Exclusion Case),70 the Court determined that
Congress had an absolute authority to exclude noncitizens, derived from its
sovereign powers.71 Finally, in Fong Yue Ting v. United States,72 the
Supreme Court solidified its jurisprudence on congressional supremacy in
the field of immigration. The Court held that the federal government’s
inherent sovereign powers extended to admission, exclusion, and
61. 92 U.S. 275 (1875).
62. Id. at 279–80 (implying that the Foreign Affairs and Commerce Clauses did not
permit states to make immigration-related determinations because the states could embroil
the United States in wars with other countries).
63. See Stumpf, supra note 2, at 1572.
64. See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581,
603–04 (1889) (holding that the government’s ability to exclude noncitizens derived from its
sovereign powers); LEGOMSKY & RODRÍGUEZ, supra note 3, at 115–23 (reviewing the various
constitutional clauses and other powers the Supreme Court used to ground immigration
regulation solely in the federal government).
65. U.S. CONST. art. I; § 8, cl. 3; see Henderson v. Mayor of New York, 92 U.S. 259,
270–71 (1875) (using the Commerce Clause to strike down a state law requiring arriving
vessels to pay taxes on arriving noncitizen passengers).
66. U.S. CONST. art. I, § 9, cl. 1; see also LEGOMSKY & RODRÍGUEZ, supra note 3, at 118.
67. U.S. CONST. art. I, § 8, cl. 4; see also LEGOMSKY & RODRÍGUEZ, supra note 3, at
68. U.S. CONST. art. I, § 8, cl. 11; see also LEGOMSKY & RODRÍGUEZ, supra note 3, at
69. LEGOMSKY & RODRÍGUEZ, supra note 3, at 119–25.
70. 130 U.S. 581 (1889).
71. Id. at 604 (“‘The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external source, would imply a diminution of its
sovereignty . . . .’” (quoting The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116,
72. 149 U.S. 698 (1893); see also LEGOMSKY & RODRÍGUEZ, supra note 3, at 147–55;
Stumpf, supra note 2, at 1572.
330 FORDHAM LAW REVIEW [Vol. 79
deportation decisions, and that this power reposed only in the political
branches and not the courts.73 With this decision, the Court stopped trying
to link the constitutional text to the federal government’s absolute power
over immigration. Instead, it justified the federal exclusivity doctrine on
the extra-constitutional concept of powers, which are “an inherent . . . right
of every sovereign.”74 Framed as political decisions, Congress’s admission
and exclusion policies became largely immune from judicial review.75
Despite the judiciary’s application of the federal exclusivity doctrine in
immigration, within the last thirty years, congressional action and case law
have increasingly eroded the principle.
C. Dismantling Federal Exclusivity: Legislative and Judicial History
Over a twenty-five year period, the Supreme Court pushed the states out
of immigration regulation.76 The decisions led to myriad legislation
regulating immigration into the United States,77 culminating with the
Immigration and Nationality Act of 1952 (INA).78 Congress regularly
amends the INA to reflect the most current immigration law.79
Accordingly, throughout the twentieth century, the doctrine of federal
exclusivity—plenary power—over immigration legislation was ingrained in
In 1976, the Supreme Court decided De Canas v. Bica.80 The decision
was crucial because it weakened the vast but vague federal exclusivity
73. Fong Yue Ting, 149 U.S. at 704–05, 731. See generally Michael J. Wishnie,
Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and
Federalism, 76 N.Y.U. L. REV. 493 (2001) (arguing that federal immigration authority
cannot be devolved to the states). This Note proffers that immigration regulation can be
shared between the states and the federal government.
74. Fong Yue Ting, 149 U.S. at 711–13; see LEGOMSKY & RODRÍGUEZ, supra note 3, at
149–50; Stumpf, supra note 2, at 1572–73.
75. See Fong Yue Ting, 149 U.S. at 731; LEGOMSKY & RODRÍGUEZ, supra note 3, at 149–
50; Stumpf, supra note 2, at 1572–73.
76. In later cases, the Court further refined the field for the federal government by
prohibiting the states from trying to regulate immigration through the criminal law. See
Stumpf, supra note 2, at 1573–78.
77. LEGOMSKY & RODRÍGUEZ, supra note 3, at 14–22. In 1917, Congress tried to control
the quality of immigrants by looking at physical and moral characteristics and literacy levels.
1 GORDON ET AL., supra note 58, § 2.02–2.04; LEGOMSKY & RODRÍGUEZ, supra note 3, at 14–
22. Then in 1921, Congress instituted a quota system based on the percentage of the white
population in 1920 that could trace its ancestry to that country. LEGOMSKY & RODRÍGUEZ,
supra note 3, at 14–22. Three years later, the Immigration Act of 1924 established another
quota system based on two percent of the foreign-born individuals of each nationality in the
United States in 1890, and limited annual arrivals into the country to 150,000. Lozano v.
City of Hazleton, 496 F. Supp. 2d 477, 558 (M.D. Pa. 2007), aff’d in part, rev’d in part, No.
07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010). In 1942, a shortage of American men, due
to World War II deployments, led to the “bracero” program. LEGOMSKY & RODRÍGUEZ, supra
note 3, at 377, 1141. This program was established to bring Mexican workers to harvest
fields; it ended in 1964. Id.
78. Immigration and Nationality Act of 1952 §§ 101–507, 8 U.S.C. §§ 1101–1537
79. 1 GORDON ET AL., supra note 58, §§ 2.03–2.04; LEGOMSKY & RODRÍGUEZ, supra note
3, at 17.
80. 424 U.S. 351 (1976).
2010] BROWN SUNDOWN TOWNS? 331
doctrine in the immigration context. In determining the constitutionality of
a California statute that imposed penalties on employers who hired
unauthorized immigrants, the Court stated that not all “state enactment[s]
which in any way deal with aliens [are] regulation[s] of immigration.”81
This statement indicates that there is room for the states to pass legislation
that affects immigrants without encroaching on the federal government’s
power to determine which immigrants to admit, exclude, or deport.82 In
reaching its decision, the De Canas Court took a narrow preemption
analysis, which contrasts with the more prevalent and broad preemption
analysis performed in the immigration context.83 The broad preemption
approach “leads courts to define conflict between state and federal laws
broadly and to put a thumb on the scale in favor of preemption.”84 Scholars
on both sides of the divide over immigration rely on De Canas to advance
their propositions.85 Part I.D discusses the preemption doctrine and its
application in the immigration context.
After De Canas, Congress also began to cut away at the federal
exclusivity doctrine. The first legislation to do so was the Immigration
Reform and Control Act of 1986 (IRCA).86 The Act established an
unprecedented system of document verification for immigrant employment
in conjunction with criminal and civil penalties for violations of the Act.87
IRCA introduced employment regulation of aliens into the immigration
81. Id. at 355. Although the De Canas decision was before the Immigration Reform and
Control Act of 1986 (IRCA), which marked the beginning of federal presence in the
regulation of immigrant employment, the case continues to be used for its preemption
analysis in the immigration context. See Karla Mari McKanders, The Constitutionality of
State and Local Laws Targeting Immigrants, 31 U. ARK. LITTLE ROCK L. REV. 579, 592–96
(2009); Rodríguez, supra note 2, at 620–21; Stumpf, supra note 2.
82. See Rodríguez, supra note 2, at 620–21.
83. Id. at 621.
84. Id. State and federal laws discriminating on the basis of alienage are subject to
different levels of scrutiny. See Mathews v. Diaz, 426 U.S. 67, 86-87 (1976); Gulasekaram,
supra note 4, at 1478-81; Rodríguez, supra note 2, at 628–29. This Note only focuses on the
preemption analysis approach to the current immigration situation; whether a state law
ultimately survives judicial review for compliance with constitutional and federal rights is
beyond the scope of this inquiry.
85. See infra Part II.C (discussing three scholarship models, their connection to De
Canas, and their utility in understanding the immigration regulatory scheme); see also Kris
W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do To Reduce
Illegal Immigration, 22 GEO. IMMIGR. L.J. 459, 462–66 (2008) (advancing that De Canas
allows states to pass immigration legislation because it is within the states’ police powers).
But see McKanders, supra note 81, at 590–92, 594 (positing that because De Canas was a
pre–IRCA decision, IRCA displaces state involvement in employment legislation that affects
86. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359
(codified as amended in scattered sections of 8 U.S.C.). This act is mostly known for its
mass legalization scheme, which allowed eligible undocumented aliens to obtain legal status.
8 U.S.C § 1255a (2006); see Aristide R. Zolberg, Reforming the Back Door: The
Immigration Reform and Control Act of 1986 in Historical Perspective, in IMMIGRATION
RECONSIDERED: HISTORY, SOCIOLOGY, AND POLITICS 334–35 (Yans-McLaughlin ed., 1990).
87. Zolberg, supra note 86, at 334. The Act authorizes civil penalties of $250 to $2000
for each worker violation and criminal penalties, including steep fines and terms of
imprisonment, for a continued pattern of hiring unauthorized workers. Id.
332 FORDHAM LAW REVIEW [Vol. 79
area, further widening Congress’s role in this context. IRCA prohibits
employers from hiring unauthorized aliens,88 defined as aliens not “lawfully
admitted for permanent residence” or “authorized to be so employed by
[IRCA] or by the Attorney General.”89 The Act establishes procedures to
enable employers to comply with IRCA’s requirements. For example, to
ensure that employers can determine a person’s immigration status, the
statute lists the document types employers may accept to verify an
employee’s eligibility to work in the United States.90 The Act requires
employers to inspect and attest to the veracity of the employee’s
documentation, and comply in good faith with the statute’s instructions.91
It also details procedures employers must follow when they unknowingly
hire unauthorized aliens or when employees become unauthorized
subsequent to hiring.92 Both employers and employees are subject to civil
fines or criminal penalties for document fraud during the employment
IRCA’s preemption and savings clauses are crucial to the current raging
debate regarding state and local involvement in the context of the
employment of aliens. The clauses read: “The provisions of this section
preempt any State or local law imposing civil or criminal sanctions (other
than through licensing and similar laws) upon those who employ, or recruit
or refer for a fee for employment, unauthorized aliens.”94 The section
“other than through licensing and similar laws” is known as the savings
clause.95 Accordingly, the savings clause contemplates state or local
involvement in regulating the employment of aliens through legislative
mechanisms within their police powers. This brief statutory provision is the
center of the current debate.
Further immigration reforms were introduced in 1996 to refine the
already vast and complex immigration scheme. The Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA)96 sought to
tighten the federal immigration system.97 IIRIRA covers issues such as
border patrol, document fraud, and public benefits eligibility.98 The Act’s
88. 8 U.S.C. § 1324a(a)(1)(A).
89. Id. § 1324a(h)(3).
90. See id. § 1324a(b); Rachel Feller, Preempting State E-Verify Regulations: A Case
Study of Arizona’s Improper Legislation in the Field of “Immigration-Related Employment
Practices”, 84 WASH. L. REV. 289, 297–98 (2009).
91. See 8 U.S.C. § 1324a(b)(1)–(2), (6).
92. See id. § 1324a(a)(2). In both instances, the employer must discharge the employee.
See id.; Jason P. Luther, A Tale of Two Cities: Is Lozano v. City of Hazleton the Judicial
Epilogue to the Story of Local Immigration Regulation in Beaufort County, South Carolina?,
59 S.C. L. REV. 573, 579–80 (2008).
93. 8 U.S.C. §§ 1324a(e), 1324c.
94. Id. § 1324a(h)(2).
95. See id.
96. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, Div. C, 110 Stat. 3009–546 (1996) (codified in various sections of 8 U.S.C. and 18
97. See Feller, supra note 90, at 297.
98. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110
Stat., at 3009–546 (increasing restrictions on immigration and reviewability of removal
2010] BROWN SUNDOWN TOWNS? 333
provisions allow states to implement programs to filter out and deny
undocumented aliens access to a driver’s license.99 The Act also allows the
Attorney General “to deputize state and local authorities to enforce federal
immigration law.”100 Importantly, the Act explicitly states that a written
agreement with the Attorney General is not required for state or local
officers to communicate with the Attorney General or otherwise cooperate
with the enforcement of federal immigration laws.101 Thus, the Act
contemplates state-local partnerships with the federal government in
immigration control and enforcement.
The Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA)102 also increased the opportunity for state involvement in
the administration of laws affecting immigration. The PRWORA permits
states to make public benefits determinations based on immigration
status103 and to “make independent determinations on the eligibility of legal
resident aliens.”104 With the PRWORA, Congress sought to close gaps in
the federal immigration scheme by ensuring that unauthorized aliens,
usually the undocumented, could not benefit from public benefits at either
the national or subnational level.105 In the Act, Congress explicitly includes
numerous provisions to ensure that unauthorized aliens do not receive
public benefits at the federal, state, or local level.106 The benefits denied to
unauthorized aliens range from government contracts and licenses to
retirement and other public assistance.107 However, exceptions are made
decisions, expanding deportability grounds, and limiting discretionary relief for immigration
law violations); see also Peter J. Spiro, Learning to Live with Immigration Federalism, 29
CONN. L. REV. 1627, 1633 (1997).
99. Illegal Immigration Reform and Immigrant Responsibility Act § 502; Spiro, supra
note 98, at 1637.
100. Spiro, supra note 98, at 1637; see 8 U.S.C. § 1357(g)(1) (2006) (authorizing
agreements with the Attorney General to allow state or local officers to investigate,
apprehend, and detain aliens); see also id. § 1103(a)(10) (allowing the Attorney General to
delegate enforcement of immigration law to the states in situations of “an actual or imminent
mass influx of aliens”).
101. 8 U.S.C. § 1357(g)(10).
102. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.
No. 104-193, 110 Stat. 2105 (1996) (codified in scattered sessions of 8, 25, and 42 U.S.C.
103. Kobach, supra note 85, at 466.
104. Spiro, supra note 98, at 1637.
105. 8 U.S.C. §§ 1611, 1621; Kobach, supra note 85, at 466.
106. 8 U.S.C. §§ 1601, 1611, 1621. The provisions that deny public benefits to
unqualified aliens state that ineligible aliens cannot receive “any grant, contract, loan,
professional license, or commercial license provided by an agency of a State or local
government or by appropriated funds of a State or local government.” Id. § 1621(c)(1)(A).
Another section further disqualifies unauthorized aliens from most public benefits funded by
state or local government agencies, such as “any retirement, welfare, health, disability,
public or assisted housing, postsecondary education, food assistance, unemployment benefit,
or any other similar benefit[s].” Id. § 1621(c)(1)(B). The language disqualifying ineligible
aliens from the same federal benefits is nearly identical, but replaces “by an agency of a
State or local government or by appropriated funds of a State or local government” with “by
an agency of the United States or by appropriated funds of the United States.” Id.; compare
id., with id. § 1611(c)(1).
107. Id. §§ 1601, 1611, 1621.
334 FORDHAM LAW REVIEW [Vol. 79
for emergency situations108 and K–12 education, which the Supreme Court
mandated in Plyler v. Doe.109 After the PRWORA, state and local
governments that wish to provide public benefits to ineligible aliens must
enact legislation that “affirmatively provides” for such aliens’ eligibility.110
Through the PRWORA, the federal government further enlisted state and
local governments by explicitly authorizing them “to require an applicant
for State and local public benefits . . . to provide proof of eligibility.”111
While empowering state and local governments, Congress also sought to
improve the effectiveness of the expanded regulatory scheme by barring
state and local governments from “prohibit[ing], or in any way restrict[ing]
[any state or local government entities], from sending to or receiving from
the [federal immigration officials] information regarding the immigration
status, lawful or unlawful, of an alien in the United States.”112 The
PRWORA clearly manifests the federal government’s intent to work
concurrently with and to require the state and local governments to ensure
compliance and tighten the federal statutory scheme.113
Most recently, various iterations of the Clear Law Enforcement for
Criminal Alien Removal Act (CLEAR Act or the Act) have been introduced
in Congress since 2005.114 The Act was introduced again in 2007115 and in
2009.116 The Act’s purpose is to reaffirm states’ and localities’ inherent
police powers to investigate, apprehend, detain, transport, and remove
noncitizens from the United States.117 The three versions all proclaim that
state and local sovereign authority “to investigate, identify, apprehend,
arrest, detain, or transfer to Federal custody aliens in the United States . . .
has never been displaced or preempted by Congress.”118
The development of the federal exclusivity doctrine illustrates the
historical concerns that triggered the Court to curb the original practice of
state regulation of immigration.119 History shows that the federal
exclusivity doctrine in immigration is not in the constitutional text, but that
it was judicially created in response to increased state regulation at a time
when a uniform national approach best reflected the country’s interests.120
108. Id. §§ 1611(b), 1621(b).
109. 457 U.S. 202, 230 (1982) (holding that public schools cannot refuse to provide
education to undocumented children); see also Kobach, supra note 85, at 466–67.
110. 8 U.S.C. § 1621(d); see also Kobach, supra note 85, at 467 & n.40.
111. 8 U.S.C. § 1625.
112. Id. § 1644; Kobach, supra note 85, at 468.
113. Kobach, supra note 85, at 467–68. But see Archibold, supra note 10, at A18.
114. Clear Law Enforcement for Criminal Alien Removal Act (CLEAR Act), H.R. 3137,
109th Cong. (2005).
115. CLEAR Act, H.R. 3494, 110th Cong. (2007).
116. CLEAR Act, H.R. 2406, 111th Cong. (2009).
118. Id. § 2.
119. Rodríguez, supra note 2, at 610; see supra notes 48–75 and accompanying text.
120. Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and
Foreign Affairs Preemption in Light of Translocal Internationalism, 57 EMORY L.J. 31, 72–
73 (2007) (“[J]udicial justifications for national exclusivity based on constitutional mandates
are court-made doctrines to mediate federalist problems.”); Rodríguez, supra note 2, at
2010] BROWN SUNDOWN TOWNS? 335
However, the last thirty years of Supreme Court jurisprudence,
congressional statutes, and scholarly debate indicate that the façade of
federal exclusivity in the immigration context has eroded or is beginning to
The current immigration debate regarding state-local legislation affecting
immigrants demonstrates that there may be room for state-local presence in
the immigration context.122 The presumption of federal exclusivity may
have expired as the current debate implicates important state and local
concerns with public health, safety, and welfare of their constituents.123
The landscape that shaped congressional plenary power over immigration
law in the late 1800s is now moving towards a power sharing theory,124
which can move comprehensive immigration reform forward, but also
highlights the potential creation of brown sundown towns in the absence of
such reform. Thus, it is important to understand the interaction among
federal exclusivity in immigration, sundown towns, and the preemption
D. The Preemption Doctrine
The Constitution and laws made in pursuance of it are “the supreme law
of the land . . . anything in the Constitution or laws of any state to the
contrary notwithstanding.”125 When the Constitution gives Congress the
exclusive power to regulate a policy area, the states may not legislate in that
area because “the Constitution of its own force requires preemption of such
state regulation.”126 However, when the Constitution does not explicitly
grant federal exclusivity over a subject matter, then both state governments
and the federal government can legislate within the same area, compelling
courts to engage in in-depth preemption analyses.127 Any state law that
interferes or conflicts with the Constitution or an act of Congress succumbs,
and is not enforceable.128 Federal law can preempt state law in three ways:
through express preemption, implied conflict preemption, and implied field
121. Rodríguez, supra note 2, at 613–20; see supra notes 76–118 and accompanying text.
122. Rodríguez, supra note 2, at 616.
124. Id. at 617–638.
125. U.S. CONST. art. VI, cl. 2.
126. De Canas v. Bica, 424 U.S. 351, 355 (1976).
127. Cf. id. (stating that the issue of whether federal regulation of immigration displaces a
state’s regulation of aliens would be irrelevant if the Constitution granted the federal
government power over all regulations affecting aliens). The Court in De Canas continued:
[T]here would have been no need, in [previous cases examining state statutes
affecting aliens] . . . even to discuss the relevant congressional enactments in
finding pre-emption of state regulation if all state regulation of aliens was ipso
facto regulation of immigration, for the existence vel non of federal regulation is
wholly irrelevant if the Constitution of its own force requires pre-emption of such
128. NORMAN J. SINGER & J.D. SHAMBIE SINGER, 2 SUTHERLAND STATUTORY
CONSTRUCTION § 36:9 (7th ed. 2009).
336 FORDHAM LAW REVIEW [Vol. 79
The clearest expression of congressional preemption of state law is
through explicit statutory language, or express preemption.130 Generally,
Congress can achieve express preemption in statutes by including a
preemption clause, which explains the type of state laws or actions that are
However, express preemptive language is not always included in federal
laws. In such cases, the courts can imply preemption by examining
legislative intent and history.132 This approach is known as implied
preemption, and it breaks down into two sub-approaches: field and conflict
preemption.133 Implied field preemption occurs when the federal legislative
scheme is so comprehensive “that no room remains for supplemental state
legislation.”134 Field preemption also occurs when national uniformity is
important to achieve dominant federal interests.135 The second type of
implied preemption is conflict preemption.136 It happens when a federal
law’s goals show a direct, actual, and irreconcilable conflict, so that the
federal and state acts cannot coexist.137
Courts should presume that Congress does not intend to displace state
law.138 As such, preemption should only be “found if the federal law
clearly evinces a legislative intent to preempt the state law, or there is such
direct and positive conflict that the two acts cannot be reconciled or
consistently stand together.”139 Furthermore, there is a presumption against
federal preemption of state law in traditional areas of state power, like their
historic police powers over public health, safety, welfare, and domestic
relations.140 The presumption does not apply when the state legislation
regulates an area “where there has been a history of significant federal
Accordingly, topics not addressed in “a comprehensive and detailed
federal statutory scheme are presumably left subject to disposition by state
law.”142 The presumption against federal preemption of state law is
particularly strong when a federal law touches areas traditionally regulated
131. Id.; supra text accompanying notes 128–30.
132. SINGER & SINGER, supra note 128, § 36:9.
138. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 518 n.41 (M.D. Pa. 2007), aff’d in
part, rev’d in part, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010); SINGER & SINGER,
supra note 128, § 36:9.
139. SINGER & SINGER, supra note 128, § 36:9.
140. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); SINGER & SINGER,
supra note 128, § 36:9.
141. Lozano, 496 F. Supp. 2d at 518 n.41 (quoting United States v. Locke, 529 U.S. 89,
142. SINGER & SINGER, supra note 128, § 36:9.
2010] BROWN SUNDOWN TOWNS? 337
by the states.143 In such cases, courts impose a higher standard and “the
state law must do major damage to the clear and substantial federal interests
in order for the preemption doctrine to apply.”144 Court review of
immigration-related laws at the state-local level falls on both sides of the
2. Preemption As Applied in the Immigration Context
As the Supreme Court stated in De Canas, not every state or local
regulation affecting immigrants is a regulation of immigration.146
Nevertheless, as will be discussed in Part II, courts take divergent
approaches regarding the breadth of federal activity in the immigration
field, specifically as it relates to employment and housing provisions
enacted at the state-local level.147 The recent explosion of state and local
legislative activity seeking to address state and local concerns by enforcing
immigration law illustrates the divergent approaches.148 One camp,
exemplified by Lozano v. City of Hazleton,149 adopted a wide preemption
analysis, which favors federal preemption of state laws that address the
employment of aliens.150 The other camp, epitomized by Chicanos Por La
Causa, Inc. v. Napolitano,151 employed a presumption against preemption,
by searching for actual conflict between the federal and state laws, because
the employment and housing fields have predominantly been occupied by
The divergent approaches can be traced to how the particular court
defines “immigration.”153 Black’s Law Dictionary defines immigration as
“the act of entering a country with the intention of settling there
permanently.”154 This definition is in line with the De Canas Court’s
determination that a regulation of immigration “is essentially a
determination of who should or should not be admitted into the country, and
the conditions under which a legal entrant may remain.”155 In De Canas,
the Court further explained that even when a federal and a state law are
145. See infra Part II.A.
146. 424 U.S. 351, 355 (1976); see supra notes 80–84 and accompanying text.
147. See Susan M. Bartlett, Comment, Grass Roots Immigration Reform, 69 LA. L. REV.
989, 994–1005 (2009). See generally McKanders, supra note 81; Karla Mari McKanders,
Welcome to Hazleton! “Illegal” Immigrants Beware: Local Immigration Ordinances and
What the Federal Government Must Do About It, 39 LOY. U. CHI. L.J. 1 (2007) (arguing that
immigration-related legislation at the subnational level is unconstitutional).
148. See Gulasekaram, supra note 4, at 1480–81; Archibold, supra note 10, at A18.
149. 496 F. Supp. 2d 477 (M.D. Pa. 2007), aff’d in part, rev’d in part, No. 07-3531, slip
op. at 146 (3d Cir. Sept. 9, 2010).
150. Id.; see also McKanders, supra note 81, at 593–96.
151. 544 F.3d 976 (9th Cir. 2008), amended by 558 F.3d 856 (9th Cir. 2009), cert.
granted sub nom. Chamber of Commerce v. Candelaria, ____ S. Ct. ____, 78 U.S.L.W. 3762
(U.S. June 28, 2010) (No. 09-115).
152. Infra Part II.A.2; see also Kobach, supra note 85, at 470–82.
153. McKanders, supra note 81, at 595–96.
154. BLACK’S LAW DICTIONARY 765 (8th ed. 2004).
155. De Canas v. Bica, 424 U.S. 351, 355 (1976).
338 FORDHAM LAW REVIEW [Vol. 79
within the same policy area, the state law should not be preempted unless
there are persuasive reasons to conclude that both governmental systems
cannot simultaneously regulate the subject matter or Congress has
unmistakably so preempted state-local participation in the field.156 The
decision stated that courts should not presume a federal intention to oust
state authority within their traditional police powers to regulate consistently
with federal laws.157 The Court found that a “clear and manifest”
demonstration that Congress intended complete ouster of state power,
including the power to promulgate laws harmonious with and not in conflict
with federal laws, was necessary to justify federal preemption of a state law
falling within the state’s police powers.158
A broader definition of immigration, on the other hand, emphasizes
federal authority to overturn state and local laws of which aliens are the
subject, deeming the laws to be regulations of immigration. Courts
adopting a broader definition of immigration reason that the “[p]ower to
regulate immigration is unquestionably exclusively a federal power,”159
because national uniformity in immigration is required to avoid foreign
relations problems with other nations.160 The argument is that the
definition of immigration is broader than determining who gets to come in
and who has to go.161 To proponents of this approach, a definition of
immigration must be expansive enough to encompass all areas in which the
federal government has regulated with respect to immigration, even when
the federal law does not explicitly oust the states from the federal
scheme.162 The range of permissible state-local action within the
immigration scheme is guided by statutory and case law on the issue.
E. Scope of the States’ Police Powers Within the Immigration Context
When the Supreme Court declared federal exclusivity over immigration,
states used their police powers to pass statutes that discriminated against
immigrants.163 In the initial stages of this type of state legislation, the
Court “did not perceive any reason why the state[s] could not discriminate
against non-citizens.”164 However, in 1948, the Court began to constrict the
156. Id. at 355–56 (citing Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142
157. Id. at 357–58.
158. Id. (citing Fla. Lime, 373 U.S. at 146).
159. Id. at 354.
160. McKanders, supra note 147, at 37–39; see also Jason Englund, Note, Small Town
Defenders or Constitutional Foes: Does the Hazleton, PA Anti-Illegal-Immigration
Ordinance Encroach on Federal Power?, 87 B.U. L. REV. 883, 904 (2007).
161. McKanders, supra note 147, at 27–29.
162. Id.; see also Englund, supra note 160, at 898–900.
163. Cf. Valerie L. Barth, Comment, Anti-Immigrant Backlash and the Role of the
Judiciary: A Proposal for Heightened Review of Federal Laws Affecting Immigrants, 29 ST.
MARY’S L.J. 105, 121 & n.56 (1997) (describing the use of the public interest doctrine
against immigrants). States also relied on their police powers to regulate public safety to
discriminate against immigrants. Id. at 121–22 nn.57–59 (citing various Supreme Court
cases that weighed states’ police powers more heavily than other constitutional rights).
164. Id. at 123.
2010] BROWN SUNDOWN TOWNS? 339
states’ use of this type of legislation.165 In a departure from its recent
jurisprudence on the issue, the Court determined that a state statute that
discriminated equally among immigrants was unconstitutional.166 The case
further decreased the states’ ability to respond to immigrant influxes.
Finally, in 1971, the Court’s decision in Graham v. Richardson167 rejected a
state’s interest in conserving welfare benefits for its citizens as a valid
reason for discriminating against immigrants.168 Thus, the Court severely
curtailed the states’ ability to pass legislation that affected immigrants.169
Despite the Court’s decisions, subsequent federal legislation contemplates a
role for the states to pass laws of which aliens are the subject.170
As such, the states’ ability to conserve limited resources for their citizens
and those authorized to reside or work in the United States requires a
delicate balance to avoid the ambiguous boundaries of federal exclusivity
and permissible subnational action in the immigration context.171 States
cannot define admission, exclusion, deportability criteria, or create new
immigration statuses.172 States also may not enact laws in a policy area in
which Congress has expressed or implied an intention to preempt state
De Canas provides important guidance regarding the type of legislation
states may enact.174 In its decision, the Court determined that “states
possess considerable authority to act in ways that affect immigration
165. Id. at 123–24.
166. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419–20 (1948); see also Barth,
supra note 163, at 123–24 (describing the Court’s decision in Takahashi as “unlike past
decisions in which the Court found the state’s special public interest more important than an
immigrant’s constitutional rights,” so that the state’s interest in its resources “was inadequate
to justify its discriminatory behavior against immigrants”).
167. 403 U.S. 365 (1971).
168. Id. at 374.
169. See Barth, supra note 163, at 125. The Court’s rejection of the states’ interest in
preserving and allocating limited resources, and labeling classifications based on alienage at
the state level as “suspect,” set the stage for the strict-scrutiny standard now applied to state
laws that discriminate against immigrants. Id. at 125–26. The contrary is true for federal
laws that treat immigrants differently. Id. at 127, 134. The Court is extremely deferential
based on Congress’s plenary power over immigration, which has been expanded to “laws
that implicate no foreign policy interest.” Id. at 133 (“For example, the Supreme Court in
Mathews v. Diaz cautioned against judicial review of immigration laws by stating the
‘reasons that preclude judicial review of political questions also dictate a narrow standard of
review of decisions made by the Congress or the President in the area of immigration and
naturalization.’” Id. at 133–34 (quoting Mathews v. Diaz, 426 U.S. 67, 81–82 (1976))).
170. See supra notes 97–113 and accompanying text.
171. Kobach, supra note 85, at 463–64; John Schwartz & Randal C. Archibold, A Law
Facing a Tough Road Through the Courts, N.Y. TIMES, Apr. 28, 2010, at A17.
172. Kobach, supra note 85, at 464.
173. Id. at 464 & n.26 (describing some types of immigration-related laws that are
preempted by federal law).
174. Id. at 464 (“As the Supreme Court declared in the landmark immigration preemption
case of De Canas v. Bica, ‘standing alone, the fact that aliens are the subject of a state statute
does not render it a [prohibited] regulation of immigration, which is essentially a
determination of who should or should not be admitted into the country, and the conditions
under which a legal entrant may remain.’” (alteration in original) (quoting De Canas v. Bica,
424 U.S. 351, 355 (1976))).
340 FORDHAM LAW REVIEW [Vol. 79
without being preempted by the [relevant federal immigration law].”175 In
other words, states may continue to legislate in the field of immigration by
enacting laws that: deny public benefits, driver’s licenses, or resident
tuition rates to unauthorized aliens; prohibit the employment of
unauthorized aliens; “mirror federal immigration crimes”; and provide
“state and local law enforcement assistance to [Immigration and Customs
Enforcement (ICE)].”176 As recognized by another federal district court,177
as long as the state or local legislation uses federal statutory classifications
or determinations, it is not preempted.178
The erosion of the judicially created federal exclusivity doctrine—
plenary power—in the immigration context through case law and
congressional statutes set the stage for the current immigration debate.179
Part II of this Note focuses on two divergent preemption approaches to the
state-local immigration legislation debate. Additionally, Part II explores
three scholarship models to the immigration regulatory scheme. Part II also
looks at the background and aftermath of each case to find a correlation
between the preemption approaches, the scholarship models, and the
prevention of a new wave of sundown towns.
II. DIVERGENT PREEMPTION APPROACHES IN THE IMMIGRATION CONTEXT
AND THEIR CONSEQUENCES
This Part describes two preemption approaches used to review state-local
legislation that affects immigrants or immigration. It also lays out three
scholarship models to evaluate the federal and state-local roles with respect
to immigration regulation. Part II.A illustrates two courts’ divergent
approaches to preemption analysis with respect to state-local legislation
affecting the employment and housing of immigrants. Part II.B discusses
175. Id. at 464. The De Canas Court stated explicitly that Congress did not occupy the
entire field of immigration. See De Canas, 424 U.S. at 357 (“Of course, even state regulation
designed to protect vital state interests must give way to paramount federal legislation. But
we will not presume that Congress, in enacting the INA, intended to oust state authority to
regulate the employment relationship . . . in a manner consistent with pertinent federal laws.
Only a demonstration that complete ouster of state power—including state power to
promulgate laws not in conflict with federal laws—was ‘the clear and manifest purpose of
Congress’ would justify that conclusion.” (quoting Fla. Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 146 (1963))). The Court indicated that a state statute is not preempted
absent “any specific indication in either the wording or the legislative history of the INA that
Congress intended to preclude even harmonious state regulation touching on aliens in
general.” Id. at 358.
176. Kobach, supra note 85, at 465 (listing eight areas in which states or localities can act
without being preempted).
177. Id. at 468 (discussing similar provisions upheld in Friendly House v. Napolitano,
D.C. No. CV-04-00649-DCB (D. Ariz. Dec. 22, 2004), vacated on other grounds, 419 F.3d
930 (9th Cir. 2005)).
178. Id. (“These judicial decisions confirmed what was already clear: states are on solid
legal ground if they follow the requirements of federal law and deny public benefits to illegal
aliens, using the [federal] program to verify with the federal government the legal status of
any alien applicant. . . . This is perhaps the easiest step that can be taken to remove an
incentive for continued unlawful presence and further illegal immigration.”).
179. Rodríguez, supra note 2, at 611–20; see supra Part I.C.
2010] BROWN SUNDOWN TOWNS? 341
current state legislation. Part II.C then reviews each scholarship model—
federal exclusivity, state and local regulation, and cooperative federalism.
A. Preemption as Applied by the Middle District of Pennsylvania and the
Lozano v. City of Hazleton180 and Chicanos Por La Causa, Inc. v.
Napolitano181 illustrate the divergent approaches used to conduct a
preemption analysis in the immigration context.182 The Lozano model
reflects a broad approach to preemption and relies on the vague federal
exclusivity boundaries in the immigration area.183 The Chicanos Por La
Causa model illustrates a narrow and “normalized” preemption analysis.184
Thus, if the court determines that the INA occupies the entire immigration
field, then the state or local law affecting immigrants will be preempted.185
However, if the court follows the narrow De Canas approach,186 a law that
affects immigrants is not a per se immigration regulation and consequently
not preempted if the state acts within its police powers in enacting the
1. Lozano v. City of Hazleton
Hazleton, Pennsylvania, is a small town located in Luzerne County,
approximately eighty miles from Philadelphia.188 The 2000 Census
indicated Hazleton’s population was about 23,000; however, by 2005 the
City’s population had increased to over 30,000.189 The demographic
explosion came after the terrorist attacks of September 11, when many
immigrants from the New York metropolitan area, both legal and
undocumented, headed to Hazleton, Pennsylvania for more jobs and
opportunities.190 The population increase led to additional costs in social
and educational services in the small town.191 For example, a school built
180. 496 F. Supp. 2d 477 (M.D. Pa. 2007), aff’d in part, rev’d in part, No. 07-3531, slip
op. at 146 (3d Cir. Sept. 9, 2010).
181. 544 F.3d 976 (9th Cir. 2008), amended by 558 F.3d 856 (9th Cir. 2009), cert.
granted sub nom. Chamber of Commerce v. Candelaria, ____ S. Ct. ____, 78 U.S.L.W. 3762
(U.S. June 28, 2010) (No. 09-115).
182. McKanders, supra note 81, at 592–96.
183. Id. at 596 (Professor Karla Mari McKanders believes the correct approach to
preemption analysis is one that “broadly interpret[s] Congress’s power to regulate
184. Rodríguez, supra note 2, at 620.
185. McKanders, supra note 81, at 596.
186. See supra notes 80–84 and accompanying text.
187. McKanders, supra note 81, at 592.
188. See Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 484 (M.D. Pa. 2007), aff’d in
part, rev’d in part, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010); Englund, supra note
160, at 884.
189. Lozano, 496 F. Supp. 2d at 484; see also Kris W. Kobach, Administrative Law:
Immigration, Amnesty, and the Rule of Law, 36 HOFSTRA L. REV. 1323, 1327 (2008);
Englund, supra note 160, at 887.
190. Rachel E. Morse, Following Lozano v. Hazleton: Keep State and Cities Out of the
Immigration Business, 28 B.C. THIRD WORLD L.J. 513, 529 (2008) (book review).
191. Englund, supra note 160, at 887.
342 FORDHAM LAW REVIEW [Vol. 79
for only 1800 students had to accommodate about 2500 students, the town’s
budget for teaching English as a second language grew from $500 per year
to $875,000, and “unreimbursed health care costs increased 60%” over a
two year period.192 Additionally, the criminal arrests of undocumented
immigrants created a communal perception of increased criminal
activity.193 This combination of factors led the City of Hazleton to pass its
Illegal Immigration Relief Act (IIRA) in 2006.194
Hazleton’s IIRA consisted of various ordinances to combat the
employment and harboring of undocumented aliens, as well as the Official
English Ordinance, which declared English as the City’s official
language.195 The legislature acted on the community’s desire to curtail the
increased fiscal burdens and criminal activity allegedly resulting from
Hazleton’s undocumented alien population.196 The version that became the
law of the City of Hazleton was Ordinance 2007-6, which amended specific
sections of Ordinance 2006-18, but enveloped the rest of 2006-18.197 The
Lozano decision of the U.S. District Court for the Middle District of
Pennsylvania was based on 2007-6 and determined that the previous
versions were similar enough and were encompassed in the review of 2007-
The ordinance used the term “illegal alien” and defined it as “an alien
who is not lawfully present in the United States, according to the terms of
United States Code Title 8, section 1101 et seq.”199 It stated that the City
and its officials could only determine immigration status by verifying a
person’s information with the federal government.200 The City of Hazleton
could not make independent determinations about a person’s immigration
status, but had to await federal verification. Thus, the federal government
192. Id. (citing Julia Vitullo-Martin, Editorial, Save Our Cities, WALL ST. J., Mar. 30,
2007, at W13, available at http://www.manhattan-institute.org/html/_wsj-
193. See Michael Powell & Michelle García, Pa. City Puts Illegal Immigrants on Notice,
WASH. POST, Aug. 22, 2006, at A3. Allegedly, in 2006, four Dominican immigrants were
arrested in connection with a fatal shooting, and a fourteen-year-old undocumented
immigrant opened fire at a playground. Englund, supra note 160, at 887. There is no
evidence linking undocumented immigrants with Hazleton’s increase in crime. Id. However,
the fact that undocumented aliens were involved sufficed to create the communal belief that
an increased presence of undocumented aliens correlated to the increase in crime. Id.
194. Lozano, 496 F. Supp. 2d at 484.
195. See id.; Powell & García, supra note 193, at A3. The IIRA was amended various
times, the last version was Ordinance 2007-6. Lozano, 496 F. Supp. 2d at 515. The
amendments were most likely in response to litigation. See id. However, this discussion will
treat all amendments as one and equivalent to Ordinance 2007-6, which became the law of
the City and was the version on which the district court ruled. Id. at 515–16.
196. Englund, supra note 160, at 888–89 (quoting Hazleton, Pa., Ordinance 2006-10, §
2(A) (July 13, 2006), available at http://www.aclupa.org/downloads/Originalordinance.pdf).
197. Hazleton, Pa., Ordinance 2007-6 (Mar. 21, 2007), available at
http://www.aclupa.org/downloads/hazletonord607.pdf. Ordinance 2006-18 was the original
law, but was later amended in response to the litigation.
198. Lozano, 496 F. Supp. 2d at 516.
199. Hazleton, Pa., Ordinance 2006-18, § 3(D) (Sept. 8, 2006), available at
2010] BROWN SUNDOWN TOWNS? 343
would have made the immigration status determination and then transmitted
that information to Hazleton officials.
The ordinance’s employment provisions stated that it was unlawful to
hire, recruit, continue to employ, permit, dispatch, or instruct “unlawful
worker[s] to perform work in whole or part within the City.”201
Accordingly, the law established enforcement and administrative
procedures to ensure and facilitate compliance.202 Employers that adhered
to the law’s verification procedures were protected from license
suspension.203 In contrast, an employer’s business license could be
suspended for failure to comply or correct violations.204 The suspensions
varied depending on the severity and length of the violation.205
Similarly, the law’s housing provisions attempted to mimic federal
standards. The “Harboring Illegal Aliens” section of the IIRA made it
unlawful “to let, lease, or rent a dwelling unit to an illegal alien, knowing or
in reckless disregard” of a person’s unauthorized status.206 It defined a
person with unauthorized status as a person in the United States in violation
of the immigration law.207 As with the employment section, the harboring
provision also set enforcement and administrative procedures.208
Landlords’ rental licenses were subject to fines of $250 per day or to
suspension for a violation or failing to correct violations, respectively.209
As a companion to the IIRA, the City’s registration ordinance required
landlords to register current tenants by providing certain identifying
information and to obtain rental licenses before leasing to new or renewing
tenants.210 Prospective and renewing tenants also had to obtain occupancy
permits.211 The occupancy permit application required the applicants to
supply personal information, including “[p]roper identification showing
proof of legal citizenship and/or residency.”212 Property owners who
adhered to the ordinance’s administrative procedures by verifying a tenant’s
immigration status were safe from the penalty provision.213
Both the employment and harboring sections contained the same
language regarding the potential for discriminatory application.214 The
IIRA’s relevant sections invalidated and made unenforceable any
complaints primarily based on “national origin, ethnicity, or race.”215 The
201. Id. § 4(A).
202. Id. § 4(B)–(E).
203. Id. § 4(B)(5).
204. Id. § 4(B)(3)–(7).
206. Id. § 5(A)(1).
207. Id. § 5(A).
208. Id. § 5(A)(2)–(B).
209. Id. § 5(B)(3)–(8).
210. Hazleton, Pa., Ordinance 2006-13, § 6(a)–(c) (Aug. 15, 2006), available at
211. Id. § 7(b).
212. Id. § 7(b)(1).
213. Hazleton, Pa., Ordinance 2006-18, § 5(B)(9).
214. Id. § 4(B)(2), § 5(B)(2).
344 FORDHAM LAW REVIEW [Vol. 79
employment provisions also created a private cause of action to protect
unfairly discharged employees,216 which was not replicated in the harboring
or registration provisions.
On August 15, 2006, Pedro Lozano and other Hazleton residents,217
along with the American Civil Liberties Union (ACLU) and the Puerto
Rican Legal Defense and Education Fund (PRLDEF), sued to challenge the
validity of the Hazleton ordinance and to enjoin its enforcement.218 The
plaintiffs included lawful permanent residents of the United States,
undocumented persons, and local groups, such as ethnic business
organizations.219 The plaintiffs alleged constitutional violations pursuant to
42 U.S.C. § 1983, which creates a private cause of action for any citizen or
other person who is deprived of “any rights, privileges, or immunities
secured by the Constitution and laws” by a person acting under the color of
state law.220 The plaintiffs claimed the ordinances could ensnare legal
residents221 and created a climate of fear, causing people to avoid
association with groups that expressed interest in the rights of Latino
immigrants.222 Latino political activity became associated with
undocumented status.223 The plaintiffs also alleged that in passing the
ordinances, the City of Hazleton violated the “United States Constitution’s
Supremacy Clause, Due Process Clause, Equal Protection Clause and
In analyzing the claims, the Lozano court subscribed to a broad
preemption inquiry. The district court struck down the Hazleton laws
prohibiting employment and housing of undocumented immigrants.225
With respect to the employment ordinance, the court determined that
IRCA’s provision regulating the employment of immigrants was broad
enough to preempt the law in question.226 The court found that the local
216. Id. § 4(E).
217. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 487–507 (M.D. Pa. 2007), aff’d in
part, rev’d in part, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010) (discussing standing
for all named, anonymous, and organizational plaintiffs).
218. Id. at 485; Powell & García, supra note 193, at A3.
219. Lozano, 496 F. Supp. 2d at 485–86.
220. 42 U.S.C. § 1983 (2006); Lozano, 496 F. Supp. 2d at 517.
221. See Powell & García, supra note 193, at A3. This is possible because many
undocumented immigrants are parts of “mixed families.” Lozano, 496 F. Supp. 2d at 496–97
(detailing the story of John Doe 1, an undocumented immigrant, asked to vacate an
apartment by a landlord, who was a family member, because the ordinance frightened the
landlord); see Rigel C. Oliveri, Between a Rock and a Hard Place: Landlords, Latinos,
Anti-Illegal Immigrant Ordinances, and Housing Discrimination, 62 VAND. L. REV. 53, 98
(2009) (noting that “mixed families” refers to family structures “in which some members are
citizens or have legal status and some lack legal status”). Housing provisions targeting
unauthorized aliens penalize mixed families and make it impossible for them to live together.
Id. at 98–99.
222. Lozano, 496 F. Supp. 2d at 491 n.12.
224. Id. at 517.
225. Id. at 517, 530–33, 554–55.
226. Id. at 518–29, 554–55; see 8 U.S.C. § 1324a (2006).
2010] BROWN SUNDOWN TOWNS? 345
ordinance was outside IRCA’s savings clause,227 ignoring the statutory
language that contemplates the states’ ability to further the federal
regulatory scheme through their licensing laws.228 The court determined
that before the states could exercise their power within the savings clause,
federal officials must have found an IRCA violation.229 The court held that
another reading would conflict with the federal government’s
comprehensive scheme and result in state or local determinations as to
which immigrants are authorized to work.230 Thus, the court determined
the IIRA’s sanctioning scheme was not within IRCA’s savings provision.231
The court next reviewed Hazleton’s housing ordinance, which instituted
a sanctions scheme against landlords and tenants.232 The law prohibited
landlords from renting to undocumented immigrants and sanctioned
violators.233 The scheme required both landlords and tenants to obtain
occupancy certificates issued by local authorities upon a determination that
the tenants were authorized to reside in the United States.234 The ordinance
targeted undocumented persons and prohibited them from renting housing
in Hazleton.235 Using a broad preemption analysis, the court determined
that the ordinance conflicted with federal immigration law.236 The court
reasoned that the federal immigration laws and removability decisions were
too complex to be implemented at the local level.237 The court also stated
that since the federal government does not deport all unauthorized
immigrants, the Hazleton law conflicted with federal policy.238 As such,
the local scheme was expressly and impliedly preempted because it
conflicted with Congress’s goals in the immigration area.239 On appeal, the
227. Lozano, 496 F. Supp. 2d at 518–29, 554–55; see 8 U.S.C. § 1324a(h)(2) (“The
provisions of this section preempt any State or local law imposing civil or criminal sanctions
(other than through licensing and similar laws) upon those who employ, or recruit or refer
for a fee for employment, unauthorized aliens.”).
228. Lozano, 496 F. Supp. 2d at 520–21 & n.42.
229. Id. at 520–21.
230. Id. at 521; see also McKanders, supra note 81, at 593.
231. The law would have been preempted under a conflict preemption analysis because it
gave local officials the ability to determine immigration status. Lozano, 496 F. Supp. 2d at
517–29. However, this Note focuses on the court’s express preemption analysis, which is
different from a “normalized” approach, contradicts the statutory language, and ultimately
prohibited the City of Hazleton from fixing its immigration status determination process to
match the federal standard established in IRCA. See McKanders, supra note 81, at 593–94.
232. Lozano, 496 F. Supp. 2d at 529–33.
233. Id. at 530.
234. See supra notes 178, 231 and accompanying text. While such a scheme could also
be challenged as violative of other federal statutes and constitutional protections, this Note
does not explore those options. See generally Oliveri, supra note 221 (arguing the various
housing ordinances are preempted because of federal exclusivity in the immigration area and
possible Federal Housing Act violations); Kai Bartolomeo, Note, Immigration and the
Constitutionality of Local Self Help: Escondido’s Undocumented Immigrant Rental Ban, 17
S. CAL. REV. L. & SOC. JUST. 855 (2008).
235. Lozano, 496 F. Supp. 2d at 530–33.
236. Id. at 533.
237. Id. at 532.
238. Id. at 533; see supra notes 125–62 and accompanying text.
239. Lozano, 496 F. Supp. 2d at 533. The court emphasized Justice Blackmun’s
concurrence in Plyler v. Doe, declaring that “‘the structure of the immigration statuses
346 FORDHAM LAW REVIEW [Vol. 79
U.S. Court of Appeals for the Third Circuit affirmed the District Court’s
determination that the employment and housing provisions were both pre-
empted by the INA.240
In the midst of the IIRA litigation, Hazleton Mayor, Louis J. Barletta,
remarked: “I see illegal immigrants picking up and leaving—some
Mexican restaurants say business is off 75 percent.”241 Hazleton’s
immigrant families started moving away after the IIRA’s passage in
2006.242 Despite the federal district court’s ruling that the ordinances were
unconstitutional, the outward flows of people did not stop.243 Rudy
Espinal, head of the Hazleton Hispanic Business Association, observed that
people continued to leave because “they [did not] want their kids to grow
up in an environment like this.”244
Hazleton’s ordinances reverberated throughout the Pennsylvania
Anthracite and Appalachian regions. Places like Shenandoah and Altoona,
with even smaller immigrant populations than Hazleton, considered similar
legislation and fueled anti-immigrant sentiment.245 Approximately one
year later, Luis Ramirez, a twenty-five-year-old Mexican and father of two,
was murdered in Shenandoah, Pennsylvania, a town twenty miles from
Hazleton, in an ethnically motivated crime.246 The attack on Ramirez was
brutal. He was knocked to the ground and kicked multiple times in the
head, resulting in loss of consciousness, convulsions, and foaming at the
mouth.247 The attackers, identified as local teenagers, were apprehended
and tried; their charges ranged from simple assault to civil rights
violations.248 The murder took place as Shenandoah considered a law
similar to Hazleton’s IIRA but held off after observing Hazleton’s litigation
makes it impossible for the State to determine which aliens are entitled to residence, and
which eventually will be deported.’” Id. at 532 (quoting Plyler v. Doe, 457 U.S. 202, 236
(1982) (Blackmun, J., concurring)).
240. Lozano v. City of Hazleton, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010).
241. Powell & García, supra note 193, at A3.
242. Emily Bazar, Illegal Immigrants Moving Out, USA TODAY, Sept. 27, 2007, at 3A.
245. Sean D. Hamill, Altoona, With No Immigrant Problem, Decides To Solve It, N.Y
TIMES, Dec. 7, 2006, at A34 [hereinafter Hamill, Altoona]; Sean D. Hamill, Mexican’s Death
Bares a Town’s Ethnic Tension, N.Y TIMES, Aug. 5, 2008, at A12 [hereinafter Hamill,
246. LEADERSHIP CONF. ON C.R. EDUC. FUND, CONFRONTING THE NEW FACES OF HATE:
HATE CRIMES IN AMERICA 17 (2009), available at
attackers allegedly yelled, “This is Shenandoah, this is America, go back to Mexico,” and
“Tell your fucking Mexican friends to get the fuck out of Shenandoah or you’ll be fucking
laying next to them.” Id.
248. In May 2009, two of the teens were convicted of simple assault, a misdemeanor, and
were acquitted of murder, aggravated assault, and ethnic intimidation. Id. Another teenager
pleaded guilty in federal court to a civil rights violation in exchange for having the third-
degree murder, aggravated assault, and other counts against him dropped. Id. The two
teenagers who had been acquitted of murder were indicted on federal hate crime charges.
Wendy Sefsaf, Shenandoah is a Cautionary Tale for how to Debate Immigration Reform,
IMMIGRATION IMPACT, (Dec. 16, 2009), http://immigrationimpact.com/
2010] BROWN SUNDOWN TOWNS? 347
troubles.249 Nevertheless, Hazleton’s IIRA provoked discussion in
Shenandoah, which created tensions between the town’s Latino and White
communities despite formerly peaceful relations.250 “Many people
believe[d] the debate fueled by Hazleton’s actions helped create the
environment that led to Mr. Ramirez’s death.”251 The failed attempt at
legislative action combined with “inflammatory rhetoric in the immigration
debate . . . correlat[es] with increased violence against Latinos.”252
Therefore, Lozano shows that broad preemption analyses displace
communal legislative attempts to allocate resources, which are replaced
with ethnically motivated violence or harassment—setting the stage for a
brown sundown town.
2. Chicanos Por La Causa, Inc. v. Napolitano
The state of Arizona passed a law similar to Hazleton’s IIRA to address
resource allocation and criminality concerns. During the 1990s, increased
border patrol presence across the California and Texas borders with Mexico
diverted flows of undocumented immigrants to the Arizona border.253
Deaths on the Arizona border “account for half of all border deaths.”254 In
addition to increased border crossings into Arizona, drug cartel-related
violence accentuated the sense of danger.255 Arizona border residents
reported an increase in burglaries and other violent property crimes.256 For
example, during the 2000 Presidential campaign, Pat Buchanan told
Theresa Murray’s story.257 Murray is an elderly woman who lives near
Douglas, Arizona.258 Her house is surrounded by chain-link fence and
“[s]he sleeps with a gun on her bed table because she has been burglarized
30 times.”259 In response to the porous border and dangerous activity,
Arizona passed a law in 2005 that extended felony immigrant-smuggling
charges to state jurisdiction.260
A border state, Arizona constantly struggles with how to reduce the
number of undocumented immigrants, who are part of the state’s
249. LEADERSHIP CONF. ON C.R. EDUC. FUND, supra note 246, at 8, 17.
251. Hamill, Mexican’s Death, supra note 245.
252. Id. (quoting Gladys Limón, staff lawyer for the Mexican American Legal Defense
and Educational Fund).
253. Gordon H. Hanson, Raymond Robertson & Antonio Spilimbergo, Does Border
Enforcement Protect U.S. Workers from Illegal Immigration?, 84 REV. OF ECON. & STAT. 73,
254. George Ciccariello-Maher, Arizona: Ground Zero in Immigration’s New Race
Wars, COUNTERPUNCH (Dec. 26, 2008), http://www.alternet.org/story/115032/.
255. R. Cort Kirkwood, Border Town Violence: As Illegal Immigrants Flood the United
States, A Wave of Crimes Committed by Illegals Is Crashing into Border Towns and
Threatening To Engulf Our Entire Nation, NEW AM., Aug. 7, 2006, at 25-28.
257. Id. at 25.
260. Ciccariello-Maher, supra note 254.
348 FORDHAM LAW REVIEW [Vol. 79
workforce.261 Undocumented workers account for approximately ten
percent of Arizona’s workforce.262 Furthermore, various organizational
surveys indicate that Arizona’s undocumented population increased
dramatically from the mid-1990s through 2006.263 In October 1996, the
unauthorized population was estimated at around 115,000.264 By 2006, the
estimate had ballooned to a range from 400,000 to 500,000.265 The state’s
answer to the problem came in the Legal Arizona Workers Act (LAWA).266
The statute was enacted on July 2, 2007 and became effective on January 1,
2008.267 It reflects Arizona’s response to the hiring of undocumented aliens
by its businesses.268 This conflation of factors likely catalyzed the
enactment of LAWA.
LAWA prohibits employers from “knowingly” hiring undocumented
workers.269 LAWA defers to federal law to define “unauthorized alien.”270
It creates a comprehensive administrative and enforcement structure
providing for investigation, adjudication, and sanctions.271 The sanctions
range from a probationary period to suspension and revocation of
employers’ business licenses, depending on the number of previous
violations and other factors.272 To help employers comply with the federal
and state laws, the law mandates the use of E-Verify, the federal online
verification program, to confirm that all new employees are authorized to
work in the United States.273 LAWA also creates a voluntary program
through which employers agree to perform additional checks using federal
databases to ensure compliance.274 Voluntary enrollment in the program
protects employers from findings of violations if they adhere to the
261. Feller, supra note 90, at 302.
262. Id. (citing PEW HISPANIC CTR., ARIZONA: POPULATION AND LABOR FORCE
CHARACTERISTICS, 2000–2006, at 1 (2008), available at http:// pewhispanic.org/
263. See PEW HISPANIC CTR., supra note 262, at 1; Federation for American Immigration
Reform (FAIR), Arizona: Illegal Aliens, http://www.fairus.org/site/
PageServer?pagename=research_research82b2 (last visited Sept. 23, 2010).
264. Federation for American Immigration Reform (FAIR), supra note 263.
265. PEW HISPANIC CTR., supra note 262, at 3–4; Federation for American Immigration
Reform (FAIR), supra note 263.
266. ARIZ. REV. STAT. ANN. §§ 23-211 to 23-216 (2009).
267. Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976, 981 (9th Cir. 2008),
amended by 558 F.3d 856 (9th Cir. 2009), cert. granted sub nom. Chamber of Commerce v.
Candelaria, ____ S. Ct. ____, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115).
268. Id. at 979.
269. ARIZ. REV. STAT. ANN. § 23-212.
270. Id. § 23-211(8). The statute adopts 8 U.S.C § 1324a to define “[k]nowingly employ
an unauthorized alien,” and further clarifies that the “term shall be interpreted consistently
with 8 United States Code § 1324a and any applicable federal rules and regulations.” Id.
271. Id. § 23-212(C)–(F).
272. Id. § 23-212(F).
273. Id. § 23-214.
274. Id. § 23-215(C)–(H).
275. Id. § 23-215(D).
2010] BROWN SUNDOWN TOWNS? 349
In July 2007, a month after the law’s enactment, businesses and civil
rights organizations brought a facial challenge against the Act.276 The
initial action was dismissed because none of the county attorneys
responsible for enforcing the Act were named as defendants.277 In
December 2007, a second action was instituted, naming appropriate
defendants: fifteen Arizona state county attorneys, the governor, and the
attorney general, among others.278 The suit alleged that the Arizona law
was preempted by federal law.279 The district court determined that LAWA
was within IRCA’s savings clause and thus was not expressly preempted by
federal law.280 The court also found that LAWA’s sanctions provisions and
mandatory use of E-Verify were not inconsistent with federal policy and
therefore were not impliedly preempted.281 The plaintiffs appealed the
decision to the Ninth Circuit Court of Appeals.282
In contrast to the Lozano court, in Chicanos Por La Causa, Inc. v.
Napolitano,283 the Ninth Circuit performed a narrow preemption analysis to
approach the Arizona statute.284 The Ninth Circuit determined that the
statute fell within IRCA’s saving clause285 because a state’s business
licensing requirements were part of the state’s power to regulate
employment.286 To reach this conclusion, the court focused on established
case law, stating that “[w]hen Congress legislates ‘in a field which the
States have traditionally occupied . . . . we start with the assumption that the
historic police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of
Congress.’”287 The court also invoked the Supreme Court’s language in De
The court also found that Arizona’s requirement that all employers
participate in the E-Verify program did not conflict with or impede the
federal government’s goals in the immigration area.289 Even though E-
276. Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976, 979 (9th Cir. 2008),
amended by 558 F.3d 856 (9th Cir. 2009), cert. granted sub nom. Chamber of Commerce v.
Candelaria, ____ S. Ct. ____, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115). It was a
facial challenge because the law had yet to be enforced against any employer. Id.
277. Id. at 981.
278. Id. at 979.
279. Id. at 981–82. The plaintiffs also alleged due process violations because LAWA did
not give employers “an adequate opportunity to dispute the federal government’s response
that an employee was not authorized to work.” Id. at 982. The court held that the employer’s
due process rights were adequately protected. Id.
283. 544 F.3d 976 (9th Cir. 2008).
284. Id. at 982–86.
285. See id. But see supra note 227 and accompanying text.
286. Chicanos Por La Causa, 544 F.3d at 983–84.
287. Id. at 983 (alteration in original) (quoting United States v. Locke, 529 U.S. 89, 108
288. Id.; see also supra note 81 and accompanying text.
289. Chicanos Por La Causa, 544 F.3d at 985–86. The electronic-based system is an
alternative to the I-9 paper verification system. Id. at 981.
350 FORDHAM LAW REVIEW [Vol. 79
Verify is voluntary under the federal scheme, the court determined that
Arizona’s statute actually advanced Congress’s goal to expand and
encourage participation in the program.290 The court reached its conclusion
not only because of its narrow express and implied preemption analysis, but
also because LAWA language adopted federal definitions and processes to
determine employment eligibility.291
Even though LAWA survived the legal challenge, the law has been
difficult to enforce.292 The county attorneys charged with prosecuting
violations do not have subpoena power to obtain personnel records from
employers, which is crucial to prove the employers knowingly hired
undocumented workers.293 Thus, most investigations do not yield enough
evidence to proceed with an employer sanctions case.294 In November
2009, the first case under the Act was filed in Maricopa County against an
employer for knowingly hiring an unauthorized worker.295 In December
2009, Waterworld became the first Arizona business to experience the
punitive impact of the law.296 The employer’s business license was
suspended for ten days under a settlement with the Maricopa County
Despite enforcement difficulties, LAWA has had a deterrent effect, as
illustrated by the exodus of mostly Latino immigrants since the law’s
passage.298 It is reported that about 100 Latinos per day move to Texas as a
result of the “immigration crackdowns in Oklahoma and Arizona.”299 The
exodus is visible in the decreased availability of workers in industries that
rely heavily on Latino labor, such as the restaurant300 and construction
industries.301 Employers also are reporting a decrease in both legal and
undocumented workers.302 The outward flow of Arizona’s undocumented
290. Id. at 986.
291. Id. at 985.
292. Jim Small, Employer Sanctions Coming Up Short, ARIZ. CAPITOL TIMES, Oct. 9,
2009, at 3.
293. Id. at 3, 63.
295. JJ Hensley & Michael Kiefer, Employer Sanctions Law Finally Yields First Case,
ARIZ. REPUBLIC, Nov. 19, 2009, at A1.
296. JJ Hensley & Michael Kiefer, First Firm Punished Under Ariz. Hiring Law, ARIZ.
REPUBLIC, Dec. 18, 2009, at B1.
297. Hensley & Kiefer, supra note 296. Whether this sanction’s instance is a success
story is questioned by some since the company was already out of business. Id. The parent
company, Golfland Entertainment Centers, did not lose any license privileges, but agreed to
use the E–Verify system and provide proof, if requested, that all employees are legal. Id.
298. Small, supra note 292. “[The Arizona law] is a strong deterrent . . . . [but] [a]s an
actual weapon, it falls short.” Id.
299. Dan McFeely, Immigration Laws Send Hispanics Elsewhere: 2 States that Approved
Crackdowns Have Seen an Exodus of Illegals, INDIANAPOLIS STAR, Feb. 24, 2008, at A1,
available at 2008 WLNR 26580674.
300. Small, supra note 292.
301. McFeely, supra note 299.
302. Small, supra note 293 (“We’re . . . driving out a lot of people who are legal, too.”
(quoting Jason LaVecke, owner of restaurant franchises in Arizona)); see also McFeely,
supra note 299 (describing outflow in Oklahoma and Indiana).
2010] BROWN SUNDOWN TOWNS? 351
population was also reflected in housing trends.303 As early as January
2008, Arizona landlords reported that “thousands of alien tenants had
vacated their apartments.”304 LAWA’s effect also was noticed at the
federal level by then-Secretary of Homeland Security, Michael Chertoff.305
He observed that since Arizona’s law was upheld, the federal government
was “beginning to see that illegal workers are picking up and leaving,
because they recognize this system is an impediment to their continued
illegal activities and illegal employment in this country.”306
Along with a decrease in the Latino labor force in Arizona, there has
been an increase in race-motivated hate crimes.307 The national trend
indicates that hate crimes against Latinos and others perceived to be
immigrants has steadily increased.308 According to a report by the U.S.
Federal Bureau of Investigation (FBI), Arizona police departments reported
185 hate crimes during 2008, compared with 161 in 2007.309 Finally, the
renewal of Maricopa County’s agreement with the federal government
under 8 U.S.C. § 1357(g),310 led by Sheriff Joe Arpaio, along with Arpaio’s
targeted and aggressive law enforcement techniques to enforce Arizona’s
human smuggling law, 311 may be increasing resentment against Arizona’s
immigrants, both authorized and undocumented.312
B. The Ninth Circuit’s Chicanos Por La Causa Provides New Impetus for
Arizona’s Continued Involvement with Immigration-Related Laws at the
On April 23, 2010, Arizona’s governor, Jan Brewer, signed into law
Senate Bill 1070 (S.B. 1070).313 The law goes beyond LAWA and is the
country’s toughest and broadest effort to control undocumented
303. Kris W. Kobach, Attrition Through Enforcement: A Rational Approach to Illegal
Immigration, 15 TULSA J. COMP. & INT’L L. 155, 157–60 (2008).
304. Id. at 158.
305. Id. at 158–60.
307. Hate Crimes Increase 15 Percent in Arizona, PHOENIX BUS. J. (Nov. 24, 2009),
http://phoenix.bizjournals.com/phoenix/stories/2009/11/23/daily34.html [hereinafter Hate
308. LEADERSHIP CONF. ON C.R. EDUC. FUND, supra note 246, at 14–15.
309. Hate Crimes, supra note 307.
310. See supra notes 96–101 and accompanying text; see also Audrey Hudson, Law
Agencies Make New Pact on Illegal Deportation, WASH. TIMES (Oct. 17, 2009),
311. Sheriff Joe Arpaio, known as “America’s Toughest Sheriff,” gained national
notoriety with his “controversial immigration and other law enforcement policies—such as
forcing detainees to wear pink underwear and engaging in racial profiling—that regularly
draw the ire of the civil rights and immigrant rights communities.” Keith Aoki & Kevin R.
Johnson, Latinos and the Law: Cases and Materials: The Need for Focus in Critical
Analysis, 12 HARV. LATINO L. REV. 73, 97 (2009).
312. McFeely, supra note 299; see also infra note 419.
313. S.B. 1070, 2010 Leg., 2d Reg. Sess. (Ariz. 2010), available at
352 FORDHAM LAW REVIEW [Vol. 79
immigration at the subnational level.314 It amends various Arizona statutes,
including LAWA, such that in its entirety, the bill is a concerted effort to
facilitate the prosecution and deportation of undocumented immigrants and
discourage their presence in Arizona.315 As such, the law is hailed as a
much needed tool for the state “to solve a crisis . . . [that] the federal
government has refused to fix.”316
The law’s broad scope aims to reduce undocumented immigrants’ ability
to stay under the radar in Arizona.317 Most prominently, the law
criminalized as a misdemeanor the failure to carry immigration
documents.318 It also empowered the local police to detain people, where
“reasonable suspicion exist[ed] that the person” was an unlawful
undocumented alien,319 or there was “probable cause to believe” that the
person had committed an offense that made that person “removable” from
the United States.320 It also created a cause of action allowing “people to
sue local government or agencies if they believe[d] federal or state
immigration law [was] not being enforced.”321 Finally, the law carefully
delineates that immigration status is defined and verified using federal
The law was supposed to become effective on July, 29, 2010, but it
occasioned immediate international, popular, legislative, and legal
backlash.323 Among the most vocal critics were Latino groups and
legislators, who were concerned about the law’s use as an ethnic or racial
314. Randal C. Archibold, Arizona Enacts Stringent Law on Immigration, N.Y. TIMES,
Apr. 24, 2010, at A1.
315. S.B. 1070, 2010 Leg., 2d Reg. Sess., § 1 (“The legislature declares that the intent of
this act is to make attrition through enforcement the public policy of all state and local
government agencies in Arizona. The provisions of this act are intended to work together to
discourage and deter the unlawful entry and presence of aliens and economic activity by
persons unlawfully present in the United States.”).
316. Archibold, supra note 314; see also supra note 315.
317. See generally S.B. 1070, 2010 Leg., 2d Reg. Sess., §§ 1–3 (targeting employers,
imposing fines on and requiring undocumented persons to reimburse the state for jail costs,
stopping and blocking the road to hire day laborers, and making illegal the transporting and
harboring of a person suspected of having entered the state in violation of U.S. immigration
318. Id. § 3.
319. Id. § 2.
320. Id. § 6.
321. Archibold, supra note 314; see also S.B. 1070, 2010 Leg., 2d Reg. Sess., § 2.
322. S.B. 1070, 2010 Leg., 2d Reg. Sess., §§ 2–3.
323. See e.g., Randal C. Archibold, Arizona Law Is Stoking Unease Among Latinos, N.Y.
TIMES, May 28, 2010, at A11; Archibold, supra note 10; Randal C. Archibold & Ana Facio
Contreras, First Legal Challenges to New Arizona Law, N.Y. TIMES, Apr. 30, 2010, at A15;
Peter Baker, supra note 4, at A12; Rebecca Cathcart, California: Los Angeles Approves a
Boycott of Arizona, N.Y. TIMES, May 13, 2010, at A17; Carl Hulse & David M.
Herszenhorn, Democrats Outline Plans for Immigration, N.Y. TIMES, Apr. 30, 2010, at A12;
Marc Lacey, For Migrants, New Law is Just Another Challenge, N.Y. TIMES, Apr. 29, 2010,
at A6; Preston, supra note 10, at A3; Julia Preston, Latino Groups Urge Boycott of Arizona
Over New Law, N.Y. TIMES, May 7, 2010, at A16; John Schwartz & Randal C. Archibold, A
Law Facing a Tough Road Through the Courts, N.Y. TIMES, Apr. 28, 2010, at A17; Billy
Witz, “Los Suns” Join Protest, Then Stop the Spurs, N.Y. TIMES, May 6, 2010, at B13. But
see Kris W. Kobach, Why Arizona Drew a Line, N.Y. TIMES, Apr. 29, 2010, at A31.
2010] BROWN SUNDOWN TOWNS? 353
profiling tool.324 Although the law stated that its implementation had to be
consistent with federal immigration and civil rights laws,325 critics were
concerned that the law would create fear and distrust of Latinos in Arizona,
as well as have “nationwide repercussions.”326 Overall, S.B. 1070’s
comprehensive scope unnerved various constituencies and caused Arizona
both economic and reputational harm.327
Importantly, S.B. 1070 was so controversial that it put pressure on the
federal government and reinvigorated the immigration debate at the federal
level.328 On July 6, 2010, the Justice Department filed suit against the State
of Arizona, challenging S.B. 1070’s constitutionality.329 Despite the
controversy, Arizona refused to capitulate to the increasing pressure to
revoke the law and defended it.330 The Justice Department presented its
position on July 22, 2010, argued that the Arizona law was preempted by
federal law, and urged Judge Susan R. Bolton to grant a preliminary
injunction before the law became effective on July 29, 2010.331 Judge
Bolton expressed skepticism about the federal government’s constitutional
challenge and continually asked the federal government to explain how the
Arizona law infringed federal authority to remove immigrants.332
On July 28, 2010, the day before S.B. 1070 was to become effective,
Judge Bolton handed down her decision, which struck the most
controversial provisions and let the remaining provisions go into effect.333
Accordingly, the provision empowering the police to detain people where a
reasonable suspicion existed that they were in Arizona in violation of U.S
immigration laws was enjoined.334 Also enjoined were the provisions
requiring police officers to check a person’s immigration status during
routine stops for traffic violations and foreigners to carry identification
documents proving they were legally present in the country.335 However,
324. Archibold, supra note 314.
325. See, e.g., S.B. 1070, 2010 Leg., 2d Reg. Sess., § 2.
326. Archibold, supra note 314. Opponents were particularly concerned with the
potential to abuse the reasonable suspicion standard to profile Latinos. Archibold, supra note
323, at A11. But see Kobach, supra note 323, at A31 (arguing that S.B. 1070 contains
adequate safeguards and since reasonable suspicion is not a new standard to courts or law
enforcement, the potential for abuse is exaggerated).
327. Cathcart, supra note 323, at A17; Preston, supra note 323, at A16; Witz, supra note
323, at B14.
328. Baker, supra note 4, at A12; Hulse & Herszenhorn, supra note 323, at A12, A15;
Preston, supra note 10, at A3.
329. Complaint at 1, United States v. Arizona, No. 2:10-cv-01413-NVW (D. Ariz. July 6,
2010); Preston, supra note 10, at A3.
330. See, e.g., Preston, supra note 323, at A6 (discussing legislative attempts to convince
the governor of Arizona to delay enforcement).
331. James C. McKinley, Jr., Taking to Streets and Court on Immigration, N.Y. TIMES,
July 23, 2010, at A11; see also Preston, supra note 10, at A3.
332. McKinley, supra note 331, at A11.
333. United States v. Arizona, 703 F. Supp. 2d 980, 985-87 (D. Ariz. 2010); see also
Miriam Jordan, Judge Blocks Arizona Law, WALL ST. J., July 29, 2010, at A1. For a
complete list of all the provisions that were enjoined and those that were allowed to go into
effect, see Arizona, 703 F. Supp. 2d at 985-87.
334. Arizona, 703 F. Supp. 2d at 993–98; see also Jordan, supra note 335, at A6.
335. Arizona, 703 F. Supp. 2d at 998–1000; see also Jordan, supra note 333, at A6.
354 FORDHAM LAW REVIEW [Vol. 79
the provisions criminalizing the harboring and transporting of
undocumented persons, and allowing people to sue local governments
where they believe federal immigration law is not being enforced survived
the district court’s review.336
Judge Bolton’s decision was welcomed by immigrant rights’ groups,
which were particularly concerned with the potential for racial profiling
abuse.337 However, supporters of the Arizona law and the state’s right to
enact such legislation expressed anger and dismay at the decision and its
implications for states’ ability to allocate limited resources.338 The
governor of Arizona vowed to appeal the decision and observers cautioned
that the delicately carved decision was just a preliminary injunction and
could be overturned.339 By the time of the ruling, the uncertainty and
controversy around S.B. 1070 had already forced many immigrant families
to self-deport or move to other states.340
C. Scholarship Models to Federal Preemption in the Immigration Context
There are three scholarship models to analyze the relationship between
the state and local government vis-à-vis the federal government. These
three models are useful to study Lozano and Chicanos Por La Causa, and to
understand the balance struck by the courts through a preemption lens. The
models are federal exclusivity, state and local regulation of immigration,
and cooperative federalism.341 Part II.C will analyze each scholarship
model to determine how each fits under or would alter the current
1. Federal Exclusivity
The federal exclusivity model reflects the foundational cases’ approach.
It deposits plenary power over immigration regulation exclusively in the
federal government.342 It prevents both states and localities from passing
laws that affect immigration in its broad definition.343 Accordingly,
subfederal governments cannot enact negative or positive laws regulating
noncitizens. The Lozano decision illustrates this approach.
336. Arizona, 703 F. Supp. 2d at 986–87, 1000-04, 1008; see also Jordan, supra note 333,
337. See Jordan, supra note 333, at A6; Evan Perez, States Deal Blow in Battle for
Power, WALL ST. J., July 29, 2010, at A6.
338. See Jordan, supra note 333, at A6; Perez, supra note 337, at A6; cf. Jonathan
Weisman & Stephanie Simon, Ruling Is New Hot-Button Issue in Election Year, WALL ST.
J., July 29, 2010, at A6 (quoting various politicians’ criticisms of Judge Bolton’s decision).
339. See Jordan, supra note 333, at A1, A6; Perez, supra note 337, at A6.
340. See Jordan, supra note 333, at A6.
341. McKanders, supra note 81, at 599. See generally Kobach, supra note 85 (stating that
state and local governments have authority under the current scheme); Michael A. Olivas,
Immigration-Related State and Local Ordinances: Preemption, Prejudice, and the Proper
Role for Enforcement, 2007 U. CHI. LEGAL F. 27, 54 (2007) (arguing against “sub-federal
assumption of immigration powers”); Wishnie, supra note 73 (positing that federal power
over immigration is not devolvable).
342. See supra Part I.B.
343. See generally Wishnie, supra note 73.
2010] BROWN SUNDOWN TOWNS? 355
The Supreme Court has continuously determined that when the federal
government has plenary power in any particular area, Congress cannot
divest itself of this authority.344 The delegation of plenary power violates
the constitutional text and structure.345 When congressional plenary power
is grounded in the constitutional text, the states and localities do not have a
role to play and Congress cannot grant them power to act in the area—the
power is non-devolvable.346 The basis for the non-devolution principle in
the immigration context is grounded in other areas of law.347
Advocates of this approach prefer it because of the inextricability of
immigration and foreign relations in an increasingly interconnected
world.348 The reasoning is that if states are permitted to regulate in this
area, even if based on their police powers, the disparate state policies could
potentially embroil the country in problems with other nations.349 Even
though foreign nations recognize that the states are not distinct entities from
the United States, the fact is that states have increased their interactions
with other countries.350 Although this theory is strongest when dealing with
“serious international players like California, Texas, and New York,”351 it
remains an attractive rationale.352
Additionally, the federal government does not remove every
undocumented alien who is in the country in violation of the immigration
laws.353 The state and local laws about employment or housing of
undocumented aliens redistribute immigrant flows to other states and
localities354 or precipitate self-deportation.355 Federal exclusivity advocates
argue that the subnational laws also conflict with the federal policy of
nonenforcement with respect to the removal of unauthorized aliens.356
Proponents of this approach argue that states and localities should stay
out of the immigration scheme.357 They contend that states and localities
are incapable of considering the effects of their law beyond their
344. Id. at 527–59.
345. Id. at 529–30.
346. Id. at 549–59.
347. Id. at 501–04, 527–58 (stating that court decisions concluding that congressional
plenary power is not devolvable are based on maritime law, contact law, and taxation law).
348. Englund, supra note 160, at 904.
349. Id. at 904–05; cf. Peter J. Spiro, The States and Immigration in an Era of Demi-
Sovereignties, 35 VA. J. INT’L L. 121, 161 (1994).
350. Englund, supra note 160, at 904–05; see Spiro, supra note 349, at 161.
351. See Englund, supra note 160, at 905.
352. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 527–28 (M.D. Pa. 2007), aff’d in
part, rev’d in part, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010).
353. Englund, supra note 160, at 906.
354. Morse, supra note 190, at 535–36.
355. Cf. Englund, supra note 160, at 904–06 (self-deportation refers to immigrants’ return
to their countries of origin, usually in reaction to anti-immigrant sentiment or stringent
356. Englund, supra note 160, at 904.
357. See generally Morse, supra note 190 (stating that allowing subnational actors to
participate in the immigration field can cause negative social, economic, and political
356 FORDHAM LAW REVIEW [Vol. 79
jurisdictional limits.358 As such, “[a] sudden extirpation of some twelve
million foreign nationals would not go unnoticed by our neighbors.”359
Allowing state and local governments to continue passing immigration-
related laws could lead to incongruent policies, which in turn could lead to
massive self-deportations or relocations of immigrants to other states and
cause tension with other countries or sister states.360
Federal exclusivity advocates also point to existing federal immigration
law and argue it reflects a “comprehensive scheme,”361 which ousts the
states from the field. They point to the federal government’s regulation of
the immigration area through criminal, employment, and welfare provisions
to support the existence of an all-encompassing federal immigration system
that displaces state and local involvement.362 Within this approach, any
role the state or local governments may play can occur only at the behest of
the federal government.363
2. State and Local Regulation of Immigration
A true state-local approach to immigration is not possible due to the
Supreme Court’s declaration of federal plenary power in the field.364
Accordingly, in discussing this scholarship model, the current immigration
scheme will serve as the example. Despite the Supreme Court’s declaration
of federal plenary power in immigration policy, legislative developments in
the last thirty years established a role for subfederal governments within the
current regulatory scheme.365 The current immigration scheme encourages
states and localities to fill in the gaps where the federal government has
failed to act and where the states have not been explicitly displaced.366
Nevertheless, for states and localities to pass immigration-related legislation
based on their police powers367 requires manipulative technical skill to
avoid federal preemption.368
358. Englund, supra note 160, at 904.
359. Id. (citing Patrik Jonsson, Immigration Crackdown Debated, CHRISTIAN SCI.
MONITOR, Nov. 3, 2006, at 2).
360. See id. at 905–06. “If a substantial number of Mexican nationals were affected by
the ordinances, Mexico would look to Washington for answers.” Id. at 905.
361. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 518 (M.D. Pa. 2007), aff’d in part,
rev’d in part, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010) (citing Hoffman Plastic
Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 147 (2002)); McKanders, supra note 81, at 596.
362. McKanders, supra note 81, at 596 (“[T]he Lozano court correctly and broadly
interpreted Congress’s power to regulate immigration. [It] found that Congress, under [the]
IRCA, had created a comprehensive scheme . . . .”).
363. Cf. Englund, supra note 160, at 903–10.
364. See supra notes 55–74 and accompanying text.
365. Bartlett, supra note 147, at 1021–22 (discussing the introduction of CLEAR Act,
which “reaffirms states and cities inherent police powers to enforce immigration laws and
protect its citizens”); Kobach, supra note 189, at 1327–28; McKanders, supra note 147, at
14–20. “[M]ost interesting about the Clear Act of 2007 is that the bill clearly states that the
inherent police powers of states and municipalities has never been displaced or preempted by
Congress in the field of immigration enforcement.” Bartlett, supra note 147, at 1022.
366. Kobach, supra note 85, at 483; McKanders, supra note 147, at 14–20.
367. McKanders, supra note 147, at 22 (“States have traditionally used their Tenth
Amendment police powers to exercise control over immigrants within their communities.”
2010] BROWN SUNDOWN TOWNS? 357
Different states and cities are exposed to varying levels of immigration
and thus to varying costs of absorbing immigrants, both legal and
undocumented, into their fabrics.369 As such, some states and localities
become “sanctuaries,”370 while others use “attrition by enforcement”
strategies and become synonymous with anti-immigrant legislation.371
It is the attrition by enforcement method that is at the fore of the
debate.372 States and localities that have succeeded in upholding laws that
punish the hiring and harboring of undocumented aliens by deferring to
federal standards claim the laws were necessary to conserve finite
resources.373 Commentators urge that the laws are not prohibited
regulations of immigration, but rather are about state and local
governments’ decisions on how to allocate limited resources to address the
increased costs or obligations of immigration influxes.374
3. Cooperative Federalism
Various scholars have criticized the courts’ applications of preemption
analyses.375 These scholars argue that the application of broad preemption
analyses limits “federalism’s iterative opportunities”376 and expands
presidential and congressional power at the expense of local democratic
forces.377 They posit that the lens through which the courts analyze
preemption and federalism has not kept up with the changed federal
(citing Laurel R. Boatright, “Clear Eye for the State Guy”: Clarifying Authority and
Trusting Federalism To Increase Nonfederal Assistance with Immigration Enforcement, 84
TEX. L. REV. 1633, 1666 (2006))).
368. The City of Hazleton implied that because it had followed federal standards with
“exacting precision,” its ordinance eschewed federal preemption because it only took actions
permitted by Congress. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 519 (M.D. Pa.
2007), aff’d in part, rev’d in part, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010)
(quoting Memorandum of Law in Support of Defendant’s Motion To Dismiss at 37, Lozano
v. City of Hazleton, 496 F.Supp.2d 477 (2007) (No. 3:06–cv–01586–JMM)); Kobach, supra
note 85, at 464 (“[S]tate statutes must be carefully drafted to avoid federal preemption.”).
369. Rodríguez, supra note 2, at 586 n.72, 637.
370. Id. at 600–05.
371. See generally Kobach, supra note 303 (explaining how this enforcement strategy has
yielded results in driving out the undocumented in Arizona and Missouri).
372. See supra note 315.
373. Kobach, supra note 189, at 1324–25; Kobach, supra note 85, at 459–62. “In city
after city, and state after state, governments have acted for one overriding reason: they can’t
afford not to.” Kobach, supra note 189, at 1324.
374. Kobach, supra note 189, at 1324–25; Rick Su, A Localist Reading of Local
Immigration Regulations, 86 N.C. L. REV. 1619, 1624–25, 1632–41 (2008) (“[L]ocal
involvement in immigration regulations is not always solely or even primarily concerned
about immigration per se, but [is] an attempt to circumvent or negotiate obligations and
constraints that have been imposed by state law.”).
375. Gulasekaram, supra note 4, at 1481; Resnik, supra note 120, at 41–42; Rodríguez,
supra note 2, at 609–30.
376. Resnik, supra note 120, at 41.
377. Id. at 73.
358 FORDHAM LAW REVIEW [Vol. 79
landscape and stifles local legislative innovation.378 For example, state and
local governments and their officials are increasingly interrelated in the
twentieth century.379 This increased interconnection is illustrated by
governmental interest groups, which lobby for subnational actors’ interests
and to protect them from national encroachments.380 States and localities
also are more international and, through interest group memberships, adopt
foreign issues into domestic law—usually, where the federal government
has failed to act.381
The cooperative federalism model proposed by Professor Cristina M.
Rodríguez suggests that a “reformulation of existing federalism
presumptions in the immigration context” is needed to better address
federal and subfederal concerns.382 The model calls for courts to limit their
preemption analyses to that applied in all other contexts.383 Accordingly,
courts should abandon “strong field and obstacle preemption theories in
immigration cases.”384 Professor Rodríguez’s proposed framework
improves the status quo and offers subfederal governments meaningful
participation within the immigration regulatory scheme.385 Real
participation and empowerment of subfederal entities can “restrain [court]
impulses to preempt legislation . . . [and] create incentives for cooperative
ventures in immigration regulation.”386
Considering congressional inability to enact lasting and effective
comprehensive immigration reform, cooperative federalism becomes an
important model to reinforce, revamp, and implement durable immigration
laws.387 Because states and localities absorb immigrants and must cope
with increased resource consumption and other immigration-related effects,
it is important to give them a voice in immigration regulation as “agents of
integration.”388 Thus, Rodríguez suggests, reassessing the foundational
basis for the current ambiguous federal exclusivity system, without
overemphasizing the national interest in immigration regulation, can foster
378. See id. at 42–43, 65; see also Gulasekaram, supra note 4, at 1450 (“[T]he Supreme
Court’s thick notion of national sovereign power is anachronistic.”).
379. Resnik, supra note 120, at 45.
381. Id. at 46–47. For example, because many local officials disagreed with the federal
government’s failure to adopt the Kyoto Protocol, some cities enacted ordinances to conform
to the Protocol’s targets. Id. at 62.
382. Rodríguez, supra note 2, at 567.
383. Id. at 567–68.
385. Id. at 568, 572.
386. Id. at 568.
387. See id.
388. Id. at 571, 581.
States and localities must determine how to integrate immigrants, legal and illegal
alike, into the body politic. . . . [Therefore,] immigration regulation should be
included in the list of quintessentially state interests, such as education, crime
control, and the regulation of health, safety, and welfare, not just because
immigration affects each of those interests, but also because managing immigrant
movement is itself a state interest.
Id. at 571.
2010] BROWN SUNDOWN TOWNS? 359
federal-state-local cooperation and strengthen the federal and subfederal
relationship to manage migration efficiently.389
Under this model, both the courts and Congress would have to modify
their conduct with regards to immigration regulation. Courts would adhere
to the default rule under preemption doctrine, which is one of concurrent
subject matter jurisdiction.390 In the absence of an actual conflict and not
just “on general assertions of the risk of potential harms,” the courts should
not displace state legislation that relates to federal legislation.391 Because
the Constitution does not explicitly delegate immigration authority to the
federal or state governments, the proper allocation of immigration authority
between levels of government is a political judgment for which the courts
are not the best proxies to strike the proper balance.392 The courts’ current
approach to this area—through broad preemption analysis—is unlikely to
provide a permanent fix that addresses both the states’ and the federal
concerns in the immigration field.393 “[E]ven if the courts find some
particular measures unconstitutional,” the need for both state and federal
action in the area is unlikely to go away.394 Accordingly, along with a
strong presumption against preemption, part of the proposal for cooperative
federalism calls for courts to consider whether a state or local law is a
regulation or a selection rule.395 Although the difference between
regulation and selection rules is not clear cut, the distinction is helpful to
advance the national discussion and balance national and subnational
States could provide meaningful involvement in selection rules by
serving as laboratories of innovation to tighten the immigration regulation
scheme.397 Therefore, when the courts and Congress are determining what
state and local actions to preempt in the immigration context, they should
consider the conceptual difference between regulation and selection.398
389. Id. at 573. Professor Cristina M. Rodríguez believes cooperative federalism will
“reshape our conceptual and doctrinal understandings of immigration regulation” by
“restraining Congress from explicitly preempting much [subfederal] legislation that may
seem counter to federal objectives at first glance.” Id. at 571, 573. Through the integration
of both federal and state-local concerns into the immigration regulatory scheme, Congress
would be restrained from “over-regulating with respect to integration issues, such as the
rights and benefits states can accord immigrants within their jurisdictions.” Id. at 573.
390. Resnik, supra note 120, at 75; see supra notes 127–44.
391. Resnik, supra note 120, at 75–76.
392. Clare Huntington, A House Still Divided, 157 U. PA. L. REV. PENNUMBRA 227, 231–
32 (2009), http://www.pennumbra.com/responses/response.php?rid=63.
393. Id. at 232.
395. See generally id.
396. Id. at 232–33.
397. See id. at 233.
398. Id.; Resnik, supra note 120, at 85–86 (using the Sudan context to illustrate how local
efforts eventually affect national political postures). The history of California’s Proposition
187, which prohibited most types of public benefits for undocumented immigrants, stands as
an early state effort to curb undocumented immigration to California. LEGOMSKY &
RODRÍGUEZ, supra note 3, at 1283. The passage of Proposition 187 led to immediate
lawsuits to enjoin its enforcement. Id. at 1284. Nevertheless, the national controversy and
inflamed passions engendered by the California law may have added clarity to the
360 FORDHAM LAW REVIEW [Vol. 79
Under this system, “subnational governments cannot choose which
noncitizens can come into the state, but a state can choose the conditions
under which noncitizens live. This balance preserves the idea that the
federal government chooses its members and state and local governments
make decisions about their resources.”399 Because each state and locality
experiences the costs of undocumented immigrants to varying degrees, the
regulation and selection distinction can allay fears and empower
subnational governments’ resource allocation decisions.
Finally, this model would require modification of current congressional
practices. For a proper and clear preemption analysis, Congress would need
to make explicit how or if state and local action is displaced by specific
federal legislation in the immigration context.400 For this preemption
clarity to exist, the courts would have to apply a “normalized” preemption
analysis and presume against the displacement of subnational laws that
overlap with the federal immigration scheme. Insisting on clear
congressional directives before finding preemption can push Congress to
balance the allocation of authority among federal-state-local governments,
so that both state-local and national interests are reflected.401 Some courts’
current approaches not only expand presidential and congressional
power,402 but also broaden the courts’ own roles to determine “when
national interests require preemption of state and local legislation.”403 The
current divergent approaches to preemption analysis illustrate that courts
have become de facto policy makers in the immigration context. Thus,
judicial restraint is required to incentivize prompt congressional action and
avoid the solidification of the ground for or the proliferation of brown
immigration debate, when Congress responded with the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (PRWORA) and IIRIRA in 1996. Cf. id. The
relevant provisions that solved the issue stated that unauthorized aliens were not eligible for
any “[s]tate or local public benefit,” except for certain emergency relief programs. 8 U.S.C.
§ 1621(a)–(c) (2006). As such, the federal government enacted the legislation that
California sought to implement and unauthorized aliens were excluded from “any retirement,
welfare, health, disability, public or assisted housing, postsecondary education, food
assistance, unemployment benefit, or any other similar benefit,” grants, contracts, and
licenses provided by an agency of a state or local government. Id. § 1621 (c)(1)(B).
399. Huntington, supra note 392, at 233. For example, LAWA can be explained as both a
regulation and selection rule because it sanctions employers who hire undocumented
immigrants. Id. at 232–33 (“It operates as a regulation rule by making it more difficult for
unauthorized migrants in Arizona to find employment. But it also operates as a selection rule
because it likely influences the decision whether to come to the United States, or at least to
Arizona.”). However, by applying the conceptual distinction, such a law should not be
preempted because the selection distinction does not create an actual conflict and Arizona is
not making the selection determination.
400. See Resnik, supra note 120, at 76.
401. See Huntington, supra note 392, at 232–34; Resnik, supra note 120, at 75–76.
402. See Resnik, supra note 120, at 76–77.
403. Id. at 84; cf. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 523–24 (M.D. Pa.
2007), aff’d in part, rev’d in part, No. 07-3531, slip op. at 146 (3d Cir. Sept. 9, 2010); supra
notes 230–39 and accompanying text.
2010] BROWN SUNDOWN TOWNS? 361
III. PAVING THE WAY FOR COOPERATIVE FEDERALISM AND AVOIDING
BROWN SUNDOWN TOWNS
This part proposes that the cooperative federalism model is the most
effective model to balance federal and state-local concerns and tighten the
immigration regulatory scheme. It also posits that the Ninth Circuit’s
preemption analysis is the best approach to move the current federal
regulatory system towards cooperative federalism. The Ninth Circuit’s
preemption analysis approach and the cooperative federalism model
represent the most adequate and efficient methods to provide a
meaningfully functional and lasting immigration regulatory scheme. Part
III.C considers how the Ninth Circuit’s approach is important to galvanize
the federal government towards the cooperative federalism model and help
to curtail the emergence of or the expansion of brown sundown towns.
A. The Ninth Circuit’s Chicanos Por La Causa Decision Illustrates the
Appropriate Approach to Preemption Analysis in the Immigration Context
The Ninth Circuit Court of Appeals decision adhered to De Canas’
regulation and selection distinction to balance Arizona’s interests within the
current federally-oriented system.404 In analyzing LAWA for federal
preemption, the court applied a normalized examination for express, field,
and conflict preemption.405 LAWA mirrored federal standards to determine
immigration status and fell within IRCA’s savings clause, thus express
preemption was not applicable.406 LAWA is a licensing law through which
Arizona regulates employment in the state—a function that falls under its
With regard to implied field preemption, similar reasoning for the
express preemption argument is applicable.408 If Congress had intended to
fully occupy the entire field of employment immigration regulations, the
savings clause would have been omitted. Conflict preemption also was
inappropriate to invalidate the law because although Arizona struck a
different balance from the federal government, the case arose as a facial
challenge.409 The law had yet to be enforced, so any conflicts or problems
404. See supra notes 80–84, 146–58, 187 and accompanying text; see also supra notes
395–400 and accompanying text.
405. See supra notes 125–58, 180–87, 280–91 and accompanying text.
406. See supra text accompanying notes 94–95; supra notes 171–78, 280–88 and
407. See supra text accompanying notes 56–58, 140, 157–59, 269–75, 285–88; supra Part
408. See supra text accompanying notes 280–91.
409. Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976, 986–87 (9th Cir. 2008),
amended by 558 F.3d 856 (9th Cir. 2009), cert. granted sub nom. Chamber of Commerce v.
Candelaria, ____ S. Ct. ____, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115); see
supra text accompanying notes 283–288. The federal government does not deport all
unauthorized immigrants, not because it has chosen not to enforce the law, but because it
lacks human and financial resources, and must prioritize its focus to deport dangerous aliens,
both documented and undocumented. Cf. Kobach, supra note 303, at 157-58, 162-63.
362 FORDHAM LAW REVIEW [Vol. 79
were unsubstantiated. The court warned that, should similar litigation arise
in an enforcement context, the fact-finding may lead to a different result.410
It is precisely this sort of nuanced and restrained preemption analysis that
courts should adhere to in the context of state and local regulations that
affect immigrants.411 This approach allows the legislative process and
immigration dialogue to take hold at the state and local level.412 It reflects
the reality on the ground that it is states and localities that must
accommodate immigrants, both legal and undocumented, into their
fabrics.413 Thus, subnational governments should be able to make
legislative decisions on how to allocate finite resources. The federal
government is less sensitive to these concerns because it benefits from the
taxes paid by undocumented persons.414 Burdened states and localities may
have behaved differently if the federal government had shared some of
those revenues with them.
Independent of other motives precipitating the state of Arizona to enact
LAWA and S.B. 1070, Chicanos Por La Causa’s aftermath demonstrates
that allowing the polity to determine its priorities may have beneficial,
albeit limited, effects.415 The immigrant exodus in the months leading up to
and subsequent to the passage of the legislation indicates that it provided
enough of a deterrent to lessen the influx and presence of unauthorized
immigrants in Arizona.416 While hate crimes against Latinos have risen in
the state, the trend mirrors a national increase that is likely attributable to
the heated immigration debate at the national level.417 Even though the
anti-immigrant and inflammatory language continues to plague LAWA,
287(g) enforcement, and the S.B. 1070 controversy in the state,418 no
increase in or egregious occurrences of violent crime by locals against
immigrants has been widely reported.419 It is too soon to determine
410. See Chicanos Por La Causa, 544 F.3d at 981.
411. See supra text accompanying notes 376–78, 383–86.
412. Legomsky, supra note 3, at 259 (“In the immigration cases . . . the Court has relied
on the plenary power doctrine to avoid performing any balancing of the relevant
countervailing interests.”); cf. id. at 263–68 (stating that courts should apply normal
standards of review, except when foreign policy or other important aliens’ rights are
413. See supra notes 7–11, 388–89 and accompanying text; supra text accompanying
note 369; cf. Morse, supra note 190, at 519–20 (“[I]t is the system that needs to change to
reflect reality, as opposed to the issue being the need to better enforce the existing laws.”).
414. Gulasekaram, supra note 4, at 1472, 1481.
415. Rodríguez, supra note 2, at 595–97, 635–37.
416. See supra notes 298–306 and accompanying text; see also Jordan, supra note 333, at
A6 (stating that S.B. 1070 prompted many undocumented immigrants to move to other states
or back to their countries) .
417. See supra text accompanying notes 307–09.
418. See supra text accompanying notes 310–12.
419. Zachary Roth, More Far-Right Violence? Anti-Immigrant Suspects in Arizona
Killing Have Ties To White Supremacists, TPMMUCKRAKER (June 16, 2009 12:48 EST),
immigrant_suspects_in_1.php. Although the violent murder of a Mexican immigrant and his
young daughter in an Arizona border town were reported, the homicide was the product of
white supremacist group leader with no particular links to Arizona. Id. One of the suspects,
Shawna Forde, is linked to various murders throughout the country associated with white
2010] BROWN SUNDOWN TOWNS? 363
whether the S.B. 1070 mixed decision will increase violence against
immigrants in Arizona, but certain political commentators warned of
growing anger and resentment. 420
The Supreme Court asked President Barack Obama’s administration to
weigh in on the Arizona law challenge pending before the Court before it
decided to grant or deny certiorari.421 On June 28, 2010, the Court granted
certiorari.422 The Supreme Court should follow the Ninth Circuit’s narrow
The narrow approach gives the statutory language in IRCA’s savings
clause its natural meaning, respects the states’ police powers in the
employment context, and demonstrates judicial restraint in making policy
judgments. Significantly, the narrow approach signals to Congress that
immigration reform is overdue and that the states should be integral parts of
the new regulatory scheme. For durable immigration reform, states must
play meaningful roles in enforcement to help control unauthorized
immigration and reduce the incentives and opportunities for unauthorized
immigrants to live in the shadows.423 The states and localities are the ones
that must accommodate immigrants, both legal and undocumented, and the
federal government does not have the resources to deport all unauthorized
immigrants. This is precisely why the subnational governments must be
involved in the immigration enforcement scheme. Otherwise, the stop-
valve approach exemplified in the previous waves of legalization programs
will continue to attract unauthorized immigrants hoping to go undetected
long enough to benefit from the next mass legalization scheme.
Additionally, the fact that Congress has not acted to overturn the Ninth
Circuit decision is key.424 Rather, as exemplified recently in CLEAR
Act,425 it appears that Congress has embraced the erosion of federal
exclusivity.426 IRCA, IIRIRA, PRWORA, and CLEAR Act, all
contemplate or carve out spaces to allow states and localities a role to play
within the immigration context.427 Because CLEAR Act is the most recent
supremacist causes. Id. Reportedly, the murder victim was a known drug dealer and the
suspects expected to find weapons and money to fund their cause. Id. Despite being
motivated by animus towards immigrants, there were other motivating factors. Id. Thus, this
murder is distinguishable from violent crime committed by locals of cities or states where
immigrant-related laws were found to be preempted. However, the S.B. 1070’s potential for
racial and ethnic profiling was a different but still concerning issue. See Archibold, supra
420. See Weisman & Simon, supra note 338, at A6.
421. Daniel González & Dan Nowicki, Justices May Hear Disputed Ariz. Law, ARIZ.
REPUBLIC, Nov. 3, 2009, at A1.
422. Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976 (9th Cir. 2008), amended
by 558 F.3d 856 (9th Cir. 2009), cert. granted sub nom. Chamber of Commerce v.
Candelaria, ____ S. Ct. ____, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115).
423. Cf. Lacey, supra note 323 (discussing how migrants perceive Arizona’s laws and
how migrants will continue to come to Arizona or other states as long as there are jobs for
them across the border).
424. See supra text accompanying notes 114–18, 305–06.
425. See supra text accompanying notes 114–18.
426. See supra Part I.C.
427. See supra Part I.C.
364 FORDHAM LAW REVIEW [Vol. 79
development in the immigration debate, its language should inform courts’
preemption analyses. The proposed statutory language explicitly states that
concurrent subfederal authority in the enforcement of immigration law is
neither expressly nor impliedly displaced.428 It indicates that “the Lozano
court’s field preemption analysis is flawed”429 and that the Ninth Circuit’s
approach is better aligned with congressional intent.
B. Cooperative Federalism Is the Most Effective Model for the Federal and
State-Local Relationship as Reflected in Chicanos Por La Causa
The cooperative federalism model attempts to move the immigration
regulation scheme “[t]oward a [n]ew [p]ower-[s]haring [t]heory.”430 The
evolution from federal legislation, as exhibited in IRCA, IIRIRA, the
PRWORA, and CLEAR Act, to increased state and local participation,
demonstrates that federal exclusivity is no longer a viable theory in the
The status quo reflects deference to the federal exclusivity doctrine,
which is exhibited in the broad preemption analyses used to evaluate state-
local legislation affecting immigrants.432 Such broad analyses emphasize
federal concerns and increase anti-immigrant sentiment as state-local
governments are disempowered and their resource allocation concerns,
whether real or not, are disregarded.433 The brewing hostility against and
suspicion of immigrants will result in their exodus and create a breeding
ground of resentment similar to the one that produced the first sundown
towns.434 The events in Hazleton and nearby cities demonstrate that the
path towards brown sundown towns may have been paved already.435 The
murder of Luis Ramirez by local teenagers, the increased proliferation of
similar ordinances, and the inflammatory rhetoric have bred fear and
resulted in an exodus of both legal and undocumented immigrants.436
The current state and local attrition by enforcement approaches likely fall
within the states’ and localities’ police powers.437 However, they require
legal technical maneuvers to avoid federal preemption.438 The legality of
the measures does not negate the inappropriate motives against immigrants
428. See supra text accompanying notes 114–18.
429. Bartlett, supra note 147, at 1022.
430. Rodríguez, supra note 2, at 617.
431. See supra text accompanying note 427; supra notes 119–24, 378–89 and
432. See supra notes 83, 84, 159–62, 225–39, 390–96 and accompanying text.
433. See supra text accompanying notes 386–89; see also Rodríguez, supra note 2, at
595–96, 639. “[P]reempting local laws that aim to exclude immigrants will not make for a
better integration environment, because the sentiments behind the preempted ordinances are
likely to remain and fester.” Id. at 639.
434. Compare Rodríguez, supra note 2, at 595–96, 639 (discussing the importance of
narrow preemption analyses and tolerance for disharmony and short-term backlash), with
Part I.A (illustrating the history of sundown towns and the exodus of various ethnic groups).
435. See supra notes 241–52 and accompanying text.
436. See supra notes 245–52 and accompanying text.
437. See Kobach, supra note 85; see also supra notes 373–74 and accompanying text.
438. See supra notes 366–68 and accompanying text.
2010] BROWN SUNDOWN TOWNS? 365
that may have driven such campaigns. Although the approach can move the
immigration debate to the forefront through increased media and judicial
scrutiny,439 it is not a permanent solution. Attrition through enforcement is
a springboard to rethink and evolve the status quo—embodied in broad
preemption analyses—towards cooperative federalism, which best balances
the concerns driving the two divergent approaches.
The cooperative federalism model empowers state and local governments
to determine how to manage immigrant influxes within their resource
allocation and police powers.440 Because the model envisions a role for
both the national and subnational governments, it can better protect
immigrants’ rights from improper legislative motives.441 It can also help to
quell the inflamed passions that the immigration debate provokes at both
the federal and subnational levels.442 State and local legislation that affects
immigrants probably will adversely affect undocumented immigrants by
forcing them into other states and localities.443 However, with respect to
those immigrants that remain, the cast of suspicion and communal hostility
will dissipate because the presumption will be that they are lawfully in the
The move towards a cooperative federalism model may result in a
patchwork of immigration legislation. Different states can take sanctuary-
like or enforcement-focused approaches as they determine the allocation of
limited resources.444 Nevertheless, the interim patchy immigration picture
probably will catalyze the re-creation of the immigration scheme.445 The
divergent approaches can create competition and innovation to incentivize
or force the federal government either to: (1) adopt the cooperative
federalism model, or (2) set out clearer policies and standards to allow the
courts to determine what actually constitutes immigration regulation.446
California’s Proposition 187 is an example of what the transition to
cooperative federalism could look like.447 The state’s attempt to exclude
undocumented aliens from most public benefits, even constitutionally
protected ones,448 produced immediate lawsuits to enjoin its
enforcement.449 While animus towards Latinos may have been a driving
439. See supra notes 299–306 and accompanying text; see also supra text accompanying
440. See supra Part I.E; supra notes 388, 399 and accompanying text; see also Rodríguez,
supra note 2, at 571, 581–82.
441. See supra note 412 and accompanying text.
442. See Rodríguez, supra note 2, at 639.
443. Id.; see also McFeely, supra note 299 (“‘What was Oklahoma’s problem is now
some other state’s problem.’” (quoting Oklahoma Representative Randy Terrill on the
success of the Oklahoma law that makes it illegal to harbor an undocumented person)).
444. See Rodríguez, supra note 2, at 581–609; supra Parts II.A.1–2.
445. See Rodríguez, supra note 2, at 638–40; supra note 9; infra text accompanying note
446. See supra text accompanying note 158; supra notes 390–403 and accompanying
447. See supra note 398; see also Rodríguez, supra note 2, at 595–96.
448. See supra notes 109, 398 and accompanying text.
449. See supra note 398 and accompanying text.
366 FORDHAM LAW REVIEW [Vol. 79
force behind the passage of the legislation, it propelled the legislation to the
national stage.450 The controversy likely precipitated congressional action
in the form of PRWORA and IIRIRA.451 This legislative exchange
between the subnational and national levels demonstrates that partnership
creates a legislative dialogue, which, in turn, moves the federal government
to act—to clarify its policies and to address the subnational concerns.
Two years elapsed from Proposition 187’s passage at the state level in
1994 to the federal overhaul embodied in PRWORA and IIRIRA in
1996.452 Two years can be a long time to tolerate anti-immigrant rhetoric
and animus, and the conditions for brown sundown towns may be solidified
in the meantime. However, because sanctuary states and cities will
continue to exist in the interim, at a minimum, undocumented aliens have
some options. Given that the Supreme Court granted certiorari and
comprehensive immigration reform is back on the legislative horizon, the
answer to the proper relationship between the federal and state-local level
with respect to the immigration regulatory scheme may emerge in less than
two years. Courts should let the issue percolate instead of stepping in as
policy makers in overlapping areas where, historically, they have been
reluctant to supplant their political judgment for that of the political
branches—be that Congress in the immigration context or the states and
localities in resource allocation and traditional police powers.
C. Avoiding Brown Sundown Towns
The Lozano court’s decision, while admirable for emphasizing
immigrants’ substantive rights,453 was a disservice to the immigration
reform debate. While the Hazleton ordinance was overly broad and some
of its language was problematic, certain provisions mirrored LAWA and
should have survived.454 The court’s broad preemption approach allowed it
to engage in an unusual, labored, and results-oriented reasoning process.455
Such a broad approach set the Hazleton ordinance up to be preempted, so
much so that the court’s decision in the case prohibited the City from fixing
the ordinance. Thus, even though the local ordinance had other problems,
the court mistakenly determined that Hazleton’s sanctioning scheme was
not within IRCA’s savings provision.456
Through its broad preemption analysis, the court quashed the debate at
the local level. The subsequent events in Hazleton illustrate what can
happen when the polity is blocked from employing legal means to address
450. See supra note 398 and accompanying text.
451. See supra text accompanying notes 96–113, 398.
452. See supra note 398.
453. See supra text accompanying note 394. See generally Lozano v. City of Hazleton,
496 F. Supp. 2d 477 (M.D. Pa. 2007), aff’d in part, rev’d in part, No. 07-3531, slip op. at
146 (3d Cir. Sept. 9, 2010).
454. See supra text accompanying notes 199–200, 406; supra notes 225–31 and
455. See supra notes 225–31 and accompanying text.
456. See supra text accompanying notes 94–95, 225–39.
2010] BROWN SUNDOWN TOWNS? 367
what it perceives to be communal problems.457 Sadly, the murder of Luis
Ramirez, an undocumented immigrant, represents the extra-legal methods
to excise the community of “problems.”458 The murder is likely to increase
the outflow of immigrants from these cities.459 Thus, new brown sundown
towns may emerge throughout states and cities that are denied the legal
opportunity to determine how to allocate limited resources or how to
accommodate population increases and demographic changes. The broad
preemption approach rewards the status quo and does not create a sense of
urgency at the national level to address the reality that the immigration
regulatory landscape has changed dramatically since 1893, when the
Supreme Court announced federal exclusivity in the area.460
In contrast, the Ninth Circuit’s narrow preemption approach to LAWA
can move the immigration debate forward. The Arizona law was saved by
the Ninth Circuit’s nuanced inquiry about both the federal and the state
level interests, actual conflicts, and recognition of the iterative opportunities
in the Arizona law.461 While the law still produced an exodus of
undocumented immigrants and the rhetoric continues to be inflammatory,
the incidence of violent communal crime towards undocumented aliens
appears to be lower.462 Additionally, by allowing the Arizona law to stand,
LAWA has been propelled to the national level, attracting the attention of
the Supreme Court, the Obama Administration, and the Department of
Homeland Security.463 LAWA also encouraged Arizona to pass S.B. 1070,
which inflamed passions and catapulted the Department of Justice to act.464
Finally, employment and public benefits regulations at the state and local
levels are appropriate within the current regulatory scheme when they
mirror federal standards. However, they should also represent the outer
limit of what is permissible at the subnational level during the transition
from the status quo towards cooperative federalism. Housing and harboring
regulations, however, may be beyond state and local authority within the
current immigration scheme.465 The lack of clarity in federal standards as
to what constitutes harboring, as well as the invasiveness of the housing
regulations, risk violating federal law and constitutional protections such as
the Fair Housing Act and privacy rights, respectively.466 In the meantime,
the public benefits and employment regulations at the state and local levels
457. See supra notes 19–28, 39–47, 241–52 and accompanying text.
458. See supra notes 19–28, 39–47, 188–94, 245–52 and accompanying text.
459. See supra text accompanying notes 243–44.
460. See supra notes 59–74 and accompanying text; supra text accompanying note 124.
461. See supra notes 283–91 and accompanying text; see also supra text accompanying
notes 376–78, 390–96.
462. See supra notes 307–12, 419 and accompanying text. More statistical and empirical
research may prove otherwise; however, the goal of this Note is to bring attention to the
relation among preemption analysis, federal activity, and anti-immigrant sentiment to set the
stage for a new explosion of sundown towns.
463. See supra text accompanying notes 421–24.
464. Supra Part II.B.
465. See supra note 234 and accompanying text. See generally Oliveri, supra note 221.
466. See supra note 234 and accompanying text; see also Oliveri, supra note 221, at
368 FORDHAM LAW REVIEW [Vol. 79
address the same concerns that the housing and harboring prohibitions
intend to solve. Because there is more background, both in jurisprudence
and statutes,467 to add precision to the employment and public benefits
legislation, legislative use of such provisions for inappropriate purposes is
more visible and thus, presumably, preventable.
It is unclear whether S.B. 1070 or LAWA will survive Ninth Circuit and
Supreme Court review. However, increased harassment and profiling
threats are creating sundown towns. Nevertheless, the laws have also
contributed to reopening the immigration debate and can pave the way for
cooperative federalism. Although a narrow preemption analysis may not
completely eliminate the formation of sundown towns, it may have a
positive effect in reducing ethnically-motivated violence.468
State empowerment within a revamped immigration scheme is a key
element to any comprehensive immigration reform. Clearly defined federal
limits are required to prevent ethnic and racial backlash that will convert
American cities into brown sundown towns. Recognition of the fiscal
burdens that unfettered immigration can have on states and localities and
the vital role these subnational entities play is crucial to tighten and create a
durable federal immigration scheme.
The raging debate about comprehensive immigration reform is ripe
ground to overhaul the current federally oriented scheme. The divergent
preemption approaches and scholarship models provide important
background to inform the legislative process. As exemplified by Lozano v.
City of Hazleton, Chicanos Por La Causa, Inc. v. Napolitano, and their
aftermath, a narrow preemption approach is preferable to evaluate
immigrant-related state-local legislation. A narrow and complex approach
better weighs state-local concerns and does not appear to increase anti-
immigrant violence. It also generates notoriety at the federal level and
incentivizes action. Accordingly, courts and legislators should recognize
the correlation between preemption, analytical clarity, and the practical
reality at the state-local level—a reality that is a brewing ground for a new
wave of sundown towns—brown sundown towns.
467. See supra notes 80–118 and accompanying text.
468. Compare supra Part II.A.1, with Part II.A.2, II.B.